Family Dispute Resolution and Victims of Violence: Potential Roles for CLCs Rachael Field Faculty of Law QUT [email protected]

Queensland University of Technology

CRICOS No. 00213J

Family Dispute Resolution and Victims of Violence: Potential Roles for

CLCs

Rachael FieldFaculty of Law [email protected]

CRICOS No. 00213Ja university for the worldreal R

Family Dispute Resolution

• “a process (other than a judicial process): • (a) in which a family dispute resolution

practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and

• (b) in which the practitioner is independent of all the parties involved in the process.” (FLA s.10F)

• To be required pre-filing. (s.60I)• Helping and non-adjudicative.


Mediation• A form of family dispute resolution.• Many different models.• Can be described as

– “intervention into a dispute or negotiation by an acceptable, impartial and neutral third-party who has no authoritative decision-making power to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute.” (Moore)

• Consensus bargaining.• Party control.


Violence and Mediation• Domestic and family violence are about power, control,

domination, and fear.• They are gendered forms of violence.• Victims of domestic violence can face significant practical

and process disadvantages as participants in family mediation.

• As a result, in the past, mediation was generally rejected as inappropriate for disputes where domestic violence had been perpetrated in the relationship.

• As a result of the new provisions of the FLA victims of violence will increasingly be participating in mediation.


Disadvantages for Victims of Violence in Mediation:

• Self-determination, party empowerment and party control are all significantly undermined in relation to a victim’s participation.

• The party-oriented nature of the process provides perpetrators with an opportunity to continue to exercise power and control over their victims.

• In wanting to create a level playing field for all parties, the mediation process can ignore the realities of power differences between perpetrators and victims of violence.



This is because:• The dynamic of domestic and family violence is such that

perpetrators are not used to cooperating with their victims.

• Rather, interactions more usually involve an imposition of their interests on their victim; and, for example, coercive, intimidating, monitoring, and threatening behaviours.

• Perpetrators commonly devalue their victims and deny their own violence.



This means that:• Mediation can offer an environment that allows the

dynamics of a violent relationship to be entrenched away from public scrutiny.

• Mediation can place victims at grave risk of suffering injustice in terms of the process itself and its outcomes.

• Many victims of violence need access to mediation, however.


Creating an Equitable Mediation Environment for Victims of Violence:

• 1. A Specific Model of Mediation for Use in Matters where a History of DV Exists.Involves lawyers trained as mediation coaches assisting with:– Pre-mediation preparation. – In-mediation support and advocacy. – Post-mediation finalisation of agreement.

• 2. CLCs Providing Mediation Preparation.Assisting clients who are victims of violence:– Understand the mediation process.– Develop negotiation and communication skills.– Develop strategies to counteract disadvantages.


Are these Models Realistically Relevant?

• Specific model of mediation involving lawyers?– Some variations are already in existence, for example, Legal Aid

Commission conferencing, but the model is not immediately relevant to how the Family Relationship Centres will function.

– A reform option?– Significant potential.

• CLCs Providing Mediation Preparation– Immediately relevant.– Important role for community legal centres – potential to assist

all family clients, but especially victims of violence.


A Specific Model of Mediation for Use in Matters where a History of DV Exists

Pre-Mediation Role for Lawyers:• Assessing the risk mediation poses for the victim.• Ensuring informed consent to participate by preparing

her with information about process and power imbalances.

• Coaching the victim about participation skills and strategies.

• Assisting with generating appropriate options and a BATNA.



In-Mediation Support and Advocacy Role for Lawyers:• Advocacy if/when required.• Assistance dealing with inequalities in bargaining power, for

example,providing instant legal advice, contextualising perpetrator’s claims,asking for time-out.

• Assistance with content and process (second pair of ears).• Physical presence with formal authority.• Assistance with option generation.• Reality checking outcomes and options.• On the spot assistance with final agreement.



Post-Mediation Role for Lawyers

• Finalisation of agreement.• Safety and support at conclusion of mediation.• Ongoing advice in the event of problems or

breach.


Providing Mediation Preparationin CLCs

Understanding the mediation process.• Philosophy of the process.• Steps in the process.• Responsibilities of parties in the process.• The role of the mediator in the process.


Mediation Process

• 1. Mediator makes an opening statement:– This is to explain the process and the mediator’s role.– Features of mediation.– Independence of mediator.– Judgment about genuine effort.– Parties in control of dispute and outcome.– Mediator controls process.– Setting ground rules.


Mediation Process

• 2. Parties’ Statements– This is to start the negotiation process.– Story-telling.– Each party makes a statement about the issues in

dispute and their perspective.– Mediator summarises each statement and reads it back

to the parties.– Very important to have prepared your statement ahead

of time, identified what the key issues are and some options for agreement.


Mediation Process• 3. Identifying issues and setting an agenda

– Creating a ‘road-map’ for discussions.– Keeping focussed.– Key issues and discussion points are agreed on.– Issues are listed in an agenda.– Mediators try to use neutral language, and avoid blame.– Violence should be non-negotiable.– Issues are sometimes prioritised.– First item for discussion is agreed.


Mediation Process• 4. Clarifying and exploring issues.

– Parties discuss the issues on the agenda.– Feelings and perspectives are exchanged.– “Rachael, tell Matthew how it makes you feel when …”– Options are generated.– “Matthew, what do you think you could do differently to

…”– Mediators summarise, reframe, repeat, ask questions,

ask the parties to talk directly to each other.


Mediation Process

• 5. Private sessions– Each party meets privately with the mediator.– Aim is for the mediator to understand how each party

is feeling about the process and the negotiations.– Opportunity to develop some options, and reality

check ideas.– Mediator will challenge entrenched positions and try

to encourage compromise.– Mediator helps parties to rehearse negotiations.


Mediation Process

• 6. Facilitating negotiations.– Options for agreement are developed.– Option for equal time shared parenting will be raised if

reasonably practicable.– Options are evaluated, explored and discussed.– Mediator wants to help achieve a mutually satisfying

agreement, or maybe just any agreement.


Mediation Process

• 7. Making an agreement.– Mediator will write up agreement.– Sometimes not everything is in the agreement –

partial agreement.– Parties are congratulated!


Tips for negotiating and communicating in mediation.

• Identify the violence to the mediator at intake if you can, or before the mediation, or in the mediation in a private session.

• Suggest a shuttle mediation if you think that might help.

• Check with the Family Relationships Centre about waiting rooms and have a safety plan for before and after the mediation.

• Perhaps visit the Centre to know what the mediation rooms look like.

• Give yourself plenty of time to get there on the day – have as many things organised and ordered so you can focus on the negotiations.



• Get some legal advice. Take notes with you that you can refer to.

• Prepare your opening statement ahead of time. Write it down. Maybe practise reading it.

• Think about what the other party will be saying and wanting.

• Identify what you want out of the mediation before you go in – develop a range of options.

• Identify what you are prepared to compromise on.

• Consider what you will do if mediation fails. What alternatives do you have?



• Use active listening.

• Ask for time out, a private session, or for a break when you need it.

• Use eye contact – particularly with the mediator.

• Speak slowly, firmly and clearly.

• Breathe.

• Try not to interrupt, roll your eyes, sigh, bang the table.



• Let the mediator know if you are having trouble.

• Reality check what the other party says they want – “But how are you going to manage to pick up the children on time?”

• Use language of best interests of the children.

• Expect him to try to upset you and control the process.


Impediments to these approaches?

• Funding.• Training of CLC workers in dispute resolution

skills.• Training of CLC workers in issues relating to

domestic and family violence.• Gender-neutral or perpetrator-focussed

perspectives on domestic and family violence.


Conclusion

• The adoption of these approaches in practice faces some barriers.

• However, significant potential exists for CLCs to help ensure a more equitable mediation environment for victims of domestic and family violence.

• There is particular immediate potential for CLCs in developing client services that focus on assistance with mediation preparation.

Documents

Family Dispute Resolution and Victims of Violence: Potential Roles for CLCs Rachael Field Faculty of Law QUT [email protected]