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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
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• 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)
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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.
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