Family Dispute Resolution and Victims of Violence: Potential Roles for CLCs Rachael Field Faculty of Law QUT r.field@qu

1. Family Dispute Resolution and Victims of Violence: Potential Roles for CLCs Rachael Field Faculty of Law QUT r.field@qut.edu.au

2. 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.

3. 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.

4. 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.

5. 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.

6. Disadvantages for Victims of Violence in Mediation: 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.

7. Disadvantages for Victims of Violence in Mediation: 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.

8. 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.

9. 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.

10. 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 victimabout participation skills and strategies. • Assisting with generating appropriate options and a BATNA.

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

12. A Specific Model of Mediation for Use in Matters where a History of DV Exists Post-Mediation Role for Lawyers • Finalisation of agreement. • Safety and support at conclusion of mediation. • Ongoing advice in the event of problems or breach.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. Mediation Process • 7. Making an agreement. • Mediator will write up agreement. • Sometimes not everything is in the agreement – partial agreement. • Parties are congratulated!

21. 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.

22. Tips for negotiating and communicating in mediation. • 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?

23. Tips for negotiating and communicating in mediation. • 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.

24. Tips for negotiating and communicating in mediation. • 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.

25. 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.

26. 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.