queensland university of technology cricos no. 00213j preparing victims of family violence for...
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Queensland University of Technology
CRICOS No. 00213J
Preparing
Victims of Family Violence for Participation in
Family Dispute Resolution
Rachael Field
Faculty of Law QUT and
Women’s Legal Service Brisbane
CRICOS No. 00213Ja university for the worldrealR
Women’s Legal Service, Brisbane
• Since 2006 WLS has been involved in CLE work with DV and family service providers to help prepare victims of family violence for participation in family dispute resolution.
• See also Mediation Booklet at wlsq.org.au – Angela Lynch and Katrina Finn.
CRICOS No. 00213Ja university for the worldrealR
Introduction• The Family Law System now effectively mandates pre-
filing family dispute resolution (FDR) in post-separation parenting disputes.
• Whilst victims of family violence can seek exemption from FDR, or be screened out, for many reasons, they will still find themselves in an FDR process.
• This paper argues that best practice in FDR service provision must include a stronger focus on preparing victims of violence - and perpetrators - for effective participation in FDR.
CRICOS No. 00213Ja university for the worldrealR
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.”
• A helping process that is non-adjudicative.
CRICOS No. 00213Ja university for the worldrealR
Mediation as FDR
• Family mediation has a long history in Australia.• Many models of mediation exist:
– Facilitative– Transformative– Evaluative
• Some forms of mediation are procedurally more appropriate, and safer, for victims of violence to participate in.
CRICOS No. 00213Ja university for the worldrealR
The Positive Aspects of Facilitative Mediation as a Form of FDR
• Problem-solving.• Consensus bargaining process.• Interests based not position based.• Content is party controlled: process is third party
facilitated.• Parties are given a voice.• Centred on the best interests of the children.• Mediation philosophy highlights self-determination, party
empowerment and party control.• Keeps possibility of real therapeutic outcomes in
perspective.
CRICOS No. 00213Ja university for the worldrealR
Victims of Family Violence in Mediation• In the past, mediation was generally rejected as inappropriate for
disputes where there was past or current family violence.
• The reason for this is that family violence is about the perpetrator’s power, control, and domination over his victim and his capacity to make her fearful. These dynamics interfere with the possibility of achieving self-determination and empowerment for the victim in the process.
• In the current system, however – for a range of reasons - many victims of violence are participating in mediation.
• There are therefore concerns about the safety and sustainability of parenting arrangements agreed to in these circumstances.
CRICOS No. 00213Ja university for the worldrealR
Victims of Violence in Mediation
• Victims of family violence need special support to participate effectively in mediation because the power imbalance that exists as a result of the violence undermines the positive and empowering aspects of the process for them.
• Perpetrators need special support to participate effectively in mediation because they are not used to cooperating with their victims. Instead they are more used to imposing their interests on their victim, being coercive, intimidating, monitoring, and threatening.
CRICOS No. 00213Ja university for the worldrealR
Suggested Reforms for FDR Service Provision to Assist Victims of Violence Participate in
Mediation • 1. Implementation of a Specific Model of Mediation for
Use in Matters Involving Past or Current Family Violence.Involving legal representatives trained as mediation coaches assisting with:– Pre-mediation preparation. – In-mediation support and advocacy. – Post-mediation finalisation of agreement.
• 2. Family Lawyers, CLCs, and Other Service Providers Providing Mediation Preparation for Victims and Perpetrators of Violence.
Assisting clients to:– Understand the mediation process.– Develop strategies for effective participation.– Develop negotiation and communication skills.
CRICOS No. 00213Ja university for the worldrealR
Current Preparation Processes
• Current preparation processes – such as information sessions, and intake – are important but they need to be augmented for matters involving past or current family violence.
• LEADR Workshop Survey 2009: FDRPs endorsed the preparation practices suggested here, but raise concerns about how they would be resourced.
CRICOS No. 00213Ja university for the worldrealR
Provision of Pre-FDR Preparation and Coaching
The key aim of preparation and coaching is to assist the parties with understanding the mediation process and developing strategies for their effective participation.
• Philosophy of the process – self-determination and consensus bargaining.
• Steps in the process.• Responsibilities of parties in the process – party control.• The role of the mediator in the process – not a decision-making
role.• Legal advice and pre-mediation counselling are also critical.
CRICOS No. 00213Ja university for the worldrealR
Common steps of a Facilitative FDR Process
• Intake• Mediator’s introduction• Parties’ opening statements• Agenda setting• Exploration of issues, and option generation• Private caucus• Negotiation and option finalisation• Finalisation of agreement.
CRICOS No. 00213Ja university for the worldrealR
Preparing Parties for Participation in FDR Intake
Intake involves:– Diagnosis of appropriateness of FDR for parties.– Screening. – Ensuring parties understand the mediation process, their role and the
role of the FDR practitioner.
Preparation could involve:– Ensuring the process and roles are already well understood.– Assisting a victim of family violence to identify and talk about the
violence.– Assessing whether shuttle or telephone approaches are necessary.
CRICOS No. 00213Ja university for the worldrealR
Preparing Parties for the Mediator’s Introduction
Mediator’s introduction involves:• Explaining the process steps and the role of the mediator and parties.• Explaining that the mediator controls the process while the parties control the dispute
and outcome.• Explaining the mediator’s independence and their judgment on the issue of genuine
effort.• Setting the ground rules – typically: respecting process and no interruptions.
Preparation could involve: • Ensuring the parties understand all aspects of the introduction before they
attend FDR. None of this should be a surprise.• Assisting the parties with strategies to abide by the ground rules eg active
listening coaching.• Helping the parties to use this step to establish a rapport with FDRP.
CRICOS No. 00213Ja university for the worldrealR
Preparing Parties to Make their Opening Statement in FDR
The parties’ statements of concerns and issues involve:• The parties having a chance to tell their story, in their own words.
• The start of the negotiation process.
• The sharing of different perspectives and interests.
• Often the FDRP will summarise each statement and read it back to the parties to clarify understanding.
Preparation could involve:• Assisting parties with prior identification of key issues and preliminary option
generation in legal context (BIC focus) to inform their statement.
• Assisting the parties to prepare and practise their statement ahead of time.
• Ensuring the parties feel comfortable and confident to speak for themselves.
CRICOS No. 00213Ja university for the worldrealR
Preparing the Parties for Agenda Setting in FDR
Setting the agenda involves:The FDRP creating a ‘road-map’ for discussions and assisting the parties to
focus their discussions.
– Key issues and discussion points are agreed on.
– Agenda is expressed in neutral non-blaming language.
– Issues are often prioritised.
Preparing parties to participate in agenda setting could involve:
• Assisting parties to prioritise their issues, and decide which issue is important to discuss first.
CRICOS No. 00213Ja university for the worldrealR
Preparing the Parties for Exploration in FDR
Exploration involves:• The FDRP facilitating the parties’ discussions of the issues on the
agenda.• Generation and discussion of options.• FDRPs summarise, reframe, repeat, ask questions, ask the parties to
talk directly to each other.
Preparation could involve: • Assisting the parties to discuss their issues and concerns in the
framework of the best interests of the child. • Supporting the parties’ use of active listening skills.• Assisting with generation of a range of options.
CRICOS No. 00213Ja university for the worldrealR
Preparing the Parties for Private Caucus in FDR
Private sessions involve:• Each party meeting privately with the FDRP.• Aim is for the FDRP to understand how each party is managing in
the process.• Opportunity to develop further options, and reality check ideas.• FDRP will challenge entrenched positions and try to encourage
compromise.• FDRP helps parties to rehearse negotiations.
Preparation could involve: • Assisting parties with calling a private session when needed.• Supporting parties in speaking openly with FDRP in private session.
CRICOS No. 00213Ja university for the worldrealR
Final Negotiations in FDR
Final negotiations involve:• Exploring final options for agreement more deeply.• FDRP aims to help achieve a mutually satisfactory agreement (or
perhaps a partial agreement).
Preparation could involve: • Assisting parties with ways to rationally reject unsafe options with a
focus on the best interests of the child.
CRICOS No. 00213Ja university for the worldrealR
Agreement in FDR
Agreement involves:• The FDRP writing up the agreement or partial agreement.
Preparation could involve: • Ensuring parties have an understanding of the legal implications of
the agreement.• Ensuring parties feel confident not to sign a parenting plan unless it
is safe.
CRICOS No. 00213Ja university for the worldrealR
Negotiation Skills Coaching: Active Listening
• A – attentive body language: Leaning forward, eye contact. No crossed arms.
• C – clarifying questions: “Could you explain that again?” “Am I right that what you’re saying is …”
• T – time out: Using silence to demonstrate focus and concentration.
• I – inquiries (open-ended): to encourage the other party to speak – “Why do you say that?” “What led you to think that?”
• V – verbal following skills: eg, mmmmmh, really?, I see, aha. Also use of summarising to show you are following “So am I right that your view is …”
• E - empathetic statements or questions: eg “I can understand you feel that way because …”
CRICOS No. 00213Ja university for the worldrealR
Conclusion
• The adoption of these preparation approaches in practice creates significant potential for family lawyers, CLCs and other service providers to help ensure a more equitable mediation environment, and therefore safer, and more just, outcomes for victims of family violence.