2014 Susan Armstrong Good Practice Guidance responding to cultural difference in family mediation

Good practice guidance responding to cultural

difference in family mediation

National Mediation Conference Dr Susan Armstrong, UWS

Melbourne, 18 September 2014

Acknowledging country

I pay respect to the Wurundjeri people of

the Kulin nation on whose beautiful land

we gather;

To their elders: past, present and future;

And to any Aboriginal people here today.

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Why respond to culture in DR? FDR?

• Facilitate normative values/ethics of mediation

– Support party self-determination

– Address dilemmas of neutrality

• Divorce & separation heighten salience of cultural & religious norms & relational bonds

• Help parents promote child’s best interests, & child’s right to enjoy culture s63DA, s60C(2)(e) FLA

– Importance cultural identity to child’s psychological, emotional & social development.

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FDR context

• Capacity party self-determination may be limited:

– Complex client profile: violence, mental health, D&A, literacy, linguistic, cultural and religious complexity.

– Time limited, mandated FDR (child protection).

– Prescriptive legislative frameworks: query voluntariness & informed consent.

– Children’s best interest focus.

– Clients’ normative framework & commitment to relational networks.

• FDR professionals’ lack confidence re culture. 4

Good practice?

• Contextual ethical approach (Field, 2011; Crowe, 2014)

– situational, relational, guidelines not rules

• ‘dialogue across difference’ with ‘respectful scrutiny’ (Brigg, 2009)

– ethical process of inquiry and exchange about values and beliefs important to people concerned

– ‘informed not-knowing’: client is expert (Laird, 1998)

• Responsive and reflexive (Armstrong, 2011a)

– Neither overvalue nor undervalue culture

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Good practice 1: Context

• Cultural assumptions in mediation & Family Law? – ‘normal, universal and thereby rendered invisible’ Brigg 2003

– Western views of conflict and selfhood

– Normative parenting Family Law Act

• How do organisational behaviour, attitudes and policies support cultural responsiveness? Cross, 1989;

NHMRC, 2005; Armstrong 2010

– Eg is culture and/or religion identified, explored?

– How are communities engaged in planning services?

• How can participating lawyers be supported to be culturally responsive?

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Good practice 2: FDRP

• Self awareness & cultural auditing (Collins, 2010)

– What do I know about this pertson & her or his culture? What assumptions am I making?

– What aspects of my own beliefs, values or previous experience might challenge my work with this person?

• Role? Objectives? Culturally inscribed? – Neutral? Impartial? Support party self-determination?

– Mediator activism & informed consent? (Weckstein, 1997)

– Role concerning children’s best interests? (Rhoades, 2008)

• Culture an extra layer of complexity or integral?

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Good Practice 3: Assessment

• Who should conduct assessment?

• How is culture / religion relevant in this matter? – How are disputes resolved in family context?

– Listen for cultural cues in client’s narrative: explore

– Discuss what best interests might mean in parents’ cultural contexts FCA, 2007

• Language? Interpreter? Support personnel? (FLC, 2012)

• How might parties’ cultural context influence: – Norms about self disclosure, conflict, emotion?

– Knowledge of family law, cultural laws & norms divorce?

– Understandings DV, willingness disclose? (Lord, 2011; FLC, 2012)

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Good Practice 3: Assessment

• Who are the parties ‘in-relation’ to networks?

• Family interested 3rd party?

• Extended family/networks involved in FDR?

• Who in child’s network?

• Normative family structures?

• Family networks and normative values influence capacity to negotiate & durability of decisions?

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Good Practice 4: Preparation – parties

• What are parties’ cultural expectations about FDR?

– role and status of 3rd party, formality, time frames, ground rules, location, face to face, understandings of fairness, equality, closure? LeBaron, 1997

• How might parties be prepared to participate?

– ‘learning how to negotiate in a way that makes real self-determination possible’ (Field, 2010, 192; Kaspiew (CFDR), 2012)

• CFDR: Learn about process, ground rules, active listening, effective communication, negotiation skills, identify options

• What role (cultural) support personnel? Lawyers? 10

Good Practice 5: Preparation: FDRP / organisation

• Who should conduct FDR?

– ‘understands the needs, language, cultural themes, dynamics [and] nuances’ (Taylor, 1991; Shah Kazemi, 2000)

– What are party preferences? Co-mediate? Gender?

• Who should interpret? How prepared? (FLC 2012)

• Guidelines participation? Seating? Location?

• What settings will respect parties’ worldview?

• What timeframes are appropriate?

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Good practice 6: Opening

• FDRP language – avoid jargon FLC, 2012

• How might parties be helped to hear and understand each other?

• FDRP aware of cultural behavioural norms? Shah Kazemi, 2000

– whether expression of conflict or confrontation is tolerated, role of non-verbal communication?

• What might be culturally appropriate ground rules? – mediators in room with client of opposite sex caucus? – ask each party to translate ‘respect’ into observable

behaviour Stringer, 2001

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Good practice 7: Exploration

• How have parties’ normative framework and cultural identity shaped the dispute? Options? – Is culture deployed in the dispute?

• How might parties be coached to facilitate communication? – ‘Coaching each party as they talk with each other,

without embarrassment or loss of face.’ Stringer, 2001

• What educative role should the FDRP play? – Advise children’s best interests, right to enjoy culture

– Assist genuine effort: consider and put options Astor 2008

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Good practice 8: Negotiation

• How might parties be supported to negotiate effectively and to make informed choices? – Effect on choices of parties’ normative framework, socio-

economic, dynamics of gender in context marriage

– What is reasonable in cultural context?

• Challenge cultural constructions not best interests?

• What opportunity do parties need to consider rationale, benefits, drawbacks of options? – How might family networks view options?

– Child maintain cultural connections?

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Good practice 9: Agreement

• Resolution may be obstructed by ‘obdurate issues’ – often concerning parties’ identities, ‘social reputation, morality, status’ Shah Kazemi, 2000

– Need to be familiar with prevailing cultural norms to be agent of reality in reaching agreement

• How might any (cultural) impasse be bridged? When appropriate to withdraw? Abramson, 2006

• Will family/cultural networks support outcome?

• Cultural rituals to seal agreement? 15

Good practice 10: Post FDR

• What support might parties need communicating outcome to family/cultural networks or implementing agreement?

– Reconciling with family/networks? (Shah Kazemi, 2001)

• What follow up is appropriate? When? How?

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Sustaining Good Practice

• How might culturally responsive practice be sustained and made integral to FDR practice? – Embed regular, structured, service-specific

collaborative learning: ‘conversations about culture’

– Enhance capacity across organisation to recognise, explore and respond to culture (& religion) in FDR

– Work with CALD & faith communities , services & leaders to identify what would support their members

– Develop cultural liaison roles?

– Train FDRPs from culturally diverse backgrounds?

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Barriers to Good Practice

• Resources

• Time & complexity: – ‘additional time required to negotiate cultural and

language differences can be prohibitive’ Kaspiew, DFDR, 2012, 36 • Legislative frameworks

• Loss of key individuals, leadership

• Multiple professional contexts

• Lack of clarity about objectives

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Implications

• CFDR ‘Empowered parents to make appropriate arrangements for children, steps toward self-management’ Kaspiew et al, 2012

– Potential for application to CALD communities? (p 36) – More intensive deployment of resources - ‘prohibitive’?

• Good practice guides culturally responsive FDR FLC, 2012

• Support information-sharing about successful practice • Develop protocols eg inclusion extended family/support • Training FDRPs from diverse backgrounds & evaluation • Culture in Mediator Standards and FDRP training • Culturally (& religiously) responsive training & practices • Work collaboratively with existing community DR • Research: voice parties? Children? other DR models?

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Bibliography

• Abramson, Harold, Selecting Mediators And Representing Clients In Cross-cultural Disputes, (2006) 7 Cardozo Journal of Conflict Resolution 253

• Armstrong, Susan (2010a) Culturally responsive family dispute resolution in Family Relationship Centres: Access and practice. Sydney: CatholicCare and Anglicare.

• Armstrong, Susan,(2010b) Enhancing Access to Family Dispute Resolution for Families from Culturally and Linguistically Diverse Backgrounds, Australian Family Relationships Clearinghouse Briefing No 18, 1-23.

• Armstrong S (2011a) Developing culturally reflexive practice in family dispute resolution, 22 Australasian Dispute Resolution Journal 30-40

• Armstrong, Susan (2011b) Encouraging conversations about culture: supporting culturally responsive family dispute resolution, Journal of Family Studies, 17(3), 233-248.

• Astor, Hilary, (2008) Making a 'genuine effort' in family dispute resolution: What does it mean? 22 Australian Journal of Family Law 102

• Avruch, Kevin (1998) Culture and Conflict Resolution, Washington: United States Institute of Peace Press.

• Barsky, Alan, (1998) Cross-Cultural Issues in Community Mediation, Bar Ilan University Conference on Mediation and Negotiation, Ramat Gan, Israel.

• Balvin, Nikola, Lola Akin Ojelabi, Tom Fisher, Helen Cleak, Alikki Vernon, (2010) Evaluation Of The Family Relationship Centre Broadmeadows, La Trobe University For Mackillop Family Services

• Brigg, Morgan, (2003) Mediation, Power, and Cultural Difference, 20 Conflict Resolution Quarterly 287.

• Brigg Mogan, (2009) The New Politics of Conflict Resolution: Responding to Difference (Palgrave Macmillan)

• Collin, Sandra, et al, The collective dimension of reflective practice: the how and why. (2011) 12 Reflective Practice, 569.

• Cross, T., et al. (1989) Towards a Culturally competent system of care: a monograph for effective services for minority children who are severely emotionally disturbed. Georgetown University Child Development Centre, Washington.

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• Crowe, Jonathan (2014) Ethics and the Mediation Community (draft)

• Docherty, Jayne, (2003) Culture And Negotiation: Symmetrical Anthropology For Negotiators, 87 Marqettte Law Review 711

• Family Court of Australia (FCA), (2008) Families and the law in Australia: The Family Court working together with new and emerging communities Commonwealth of Australia, Canberra.

• Field, Rachael, (2010) FDR and victims of family violence: Ensuring a safe process and outcomes 21 Australasian Journal of Dispute Resolution 185

• Field, Rachael (2011) Rethinking mediation ethics: A contextual method to support party self-determination

• Family Law Council, (2012) Improving The Family Law System for Clients from Culturally and Linguistically Diverse Backgrounds, Canberra

• Furlong, M., & Wight, J. (2011) Promoting “critical awareness” and critiquing “cultural competence”: Towards disrupting received professional knowledges. Australian Social Work, 64(1) 38-54

• Kaspiew, Rae, et al, (2012) Evaluation of a pilot of legally assisted and supported family dispute resolution in family violence cases: Final report, AIFS

• Laird, J. (1998). Theorizing culture. In M. McGoldrick (Ed.), Re-visioning family therapy: Race, culture, gender in clinical practice . New York: Guilford

• Michelle LeBaron, (1997) Intercultural Disputes: Mediation, conflict resolution, and multicultural reality: culturally competent practice, Edward Kruk (ed) Mediation and Conflict Resolution in Social Work and Human Services Nelson Hall publishers, Chicago.

• Lederach, John Paul, (1996) Preparing for Peace: Conflict Transformation Across Cultures, Syracuse University Press, Syracuse.

• Merry, Sally Engle, (1986) Disputing Without Culture 100 Harvard Law Review 2057

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• Morgan, Anthony, et al, (2012) Evaluation of alternative, dispute resolution initiatives in the care and protection jurisdiction of the NSW Children’s Court, Australian Institute of Criminology, Canberra.

• National Health and Medical Research Council, Cultural Competency in Health: A guide for policy, partnerships and participation (2005) Commonwealth of Australia, Canberra.

• Rhoades, Helen, et al, (2008) Enhancing Inter-professional Relationships in a Changing Family Law System: Final Report University of Melbourne, Melbourne.

• Shah-Kazemi, Sonia, (2000) Cross Cultural Mediation: A Critical Review of the Dynamics of Culture in Family Mediation 14 International Journal of Law Family and Policy 302.

• Shah Kazemi, Sonia Nurin (2001) Untying the Knot: Muslim Women, Divorce and the Shariah (Nuffield Foundation, The Signal Press)

• Stalford, Helen, (2010) Crossing boundaries: reconciling law, culture and values in international family mediation 32 Journal of Social Welfare and Family Law 155

• Stringer, Donna, & Lonnie Lusardo, (2001) Bridging Cultural Gaps In Mediation 56 Dispute Resolution Journal 29

• Taylor, Alison and Sanchez, (1991) Out of the White Box: Adapting Mediation to the Needs of Hispanic and Other Minorities within American Society 29 Family and Conciliation Courts Review 104

• Walker, Polly (1999) Concepts of the self: implications for cross-cultural conflict resolution 2(2) ADR Bulletin

• Weckstein, Donald (1997) In Praise of Party Empowerment – And of Mediator Activism 33 Willamette Law Review 501

• Women’s Legal Services NSW, A Long Way to Equal, An update of ‘Quarter Way to Equal: A report on barriers to access to legal services for migrant women’ (2007, Sydney)

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