New Zealand: Lets mediate - how can mediation assist in relationship cases?

Relationships (Family)

You may have read recent commentary in the papers from the Courts regarding delays in the processing of cases through the Family Court. In one highlighted case, the relationship was less than three years, but six years after it ended the case was still languishing in Court. Some of this delay was due to the parties' conduct during that six year period but some delay is just inherent in the Court process.

While the basic theme of laws surrounding relationship breakups is that the parties should be able to move on with their lives, the delay in achieving resolution means that they are in limbo for an extended period of time and that not only impacts on their ability to move on, but also impacts their children.

As lawyers, we have a duty in such cases to promote reconciliation, not of the relationship as such but of the issues, and to guide clients through the process. Often the issues are far wider than property. Emotional issues surrounding the breakdown of the relationship can overshadow discussions. We of course can suggest the parties attend counselling to deal with those non legal issues, but both parties have to be willing to attend.

The lack of definite answers where the Courts have discretions under the law can make it difficult to give any certain answer to parties, for instance on such issues as economic disparity or spousal maintenance.

As a general rule, lawyers work hard to try and resolve matters for clients. In reality, there is no winner when parties separate and a degree of compromise is needed. However in those files where a standoff seems to have been reached, or where one party is refusing to cooperate in supplying information, or has a "head in the sand" mentality, something more is needed.

The assumption is that this is the point at which proceedings should be filed. The above comments from a Judge about the lengthy process have to be borne in mind however. The start of filing proceedings, even when matters progress smoothly through Court, is the start of a marathon which will be costly and emotionally draining. Although there are always opportunities to settle along the way, it would not be unreasonable to say that the whole process, if a hearing was ultimately necessary, could be two years. Although costs are normally awarded to the successful party, they are only awarded after a hearing and will not reimburse you for all the costs you have incurred. If you settle short of a hearing, unless you negotiate it as one of the terms of your agreement, then no costs will be recovered.

While a Settlement Conference is normally held as part of the court process, that is only assigned when all necessary information has been filed in Court and when your file comes up on the waiting list. This again involves a delay - of at least months from the point of filing proceedings - and the Court resources are such that a finite period of time is set aside of just over an hour for the purposes of the Settlement Conference. This is unlikely to be sufficient to resolve anything other than the simplest division or perhaps isolate the issues further.

With all of the above in mind, parties need to seriously consider as an option, the use of an experienced private mediator to work with them to achieve a settlement. Such a mediator needs to be properly trained, not a friend with them around the kitchen table, and they both need to have their legal representation present, so that they can be advised on the terms of agreement properly and it can become a binding agreement by law.

Obviously both parties have to agree to use a mediator and they will share the costs equally. It follows therefore that both parties have to see this as being of benefit to them. Parties are often reluctant to go to mediation. They may want their day in Court, perhaps they want the Judge to tell their ex off - sadly we have to tell clients that they are highly unlikely to have that satisfaction. One party might simply be reluctant to resolve matters. Our experience, both of private- and Court-led mediations, is that you can be totally surprised that a matter settles where the parties begin in absolute opposed positions.

Private mediation is cost effective where parties are at a standoff, but understand that the Court process will be protracted, emotionally difficult and costly for them. What can be solved in one day, a few weeks after the parties agree to go to mediation, could otherwise linger on, festering ill feeling.

The cost paid by each party before mediation commenced, with a professional mediator, is about the same as the cost of preparing and filing the first set of documents in Court. You will of course also have the costs of your lawyer preparing for, and attending at, the mediation.

You can expect that prior to the mediation, the mediator has received all information relevant to the parties so that they are well aware going into the meeting of the parties' positions and what they have to work with. This could include copies of letters between the parties' lawyers setting out the areas of dispute, valuations and other documents considered to be crucial.

How the mediation proceeds depends very much on the personalities involved. Sometimes it might be appropriate that the parties spend the whole mediation in the same room, but there should always be the ability to break away and have the mediator move between the parties. One person might be dreading being in the same room as their ex but a skilled mediator manages atmosphere in the room, insisting on civility between the parties.

A private mediation is not constrained by the resources of the Court so can explore issues in as much depth as is needed. Sometimes that does allow the airing of emotions that are getting in the way of resolution.

You might wonder why, if you each have lawyers they cannot resolve matters. Your lawyer is acting to represent you. They can advise you of the law and whether the position you are taking is likely to be successful if you go to Court. They cannot force the other person to agree with you.

In mediation, the mediator is neutral. Their aim is to work with you both to achieve resolution - however their payment is not dependent on there being a settlement. The parties are fully involved, and rather than having a result imposed on them as they would after a Court hearing, they decide the outcome they can both live with to have the matter at an end.

There are situations where mediation is not suitable. For instance, where there is a power imbalance between the parties, or if insufficient information is available for parties and their lawyers to feel comfortable about any compromise they are making. Sometimes it can be simply too early to have a mediation.

Regardless, if both parties agree to go to mediation and are paying a fee to do so, they are usually motivated to finalise matters.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
James & Wells Intellectual Property
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
James & Wells Intellectual Property
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions