Preparing Victims of Family Violence for Participation in Family Dispute Resolution

1. Preparing Victims of Family Violence for Participation in Family Dispute Resolution Rachael Field Faculty of Law QUT and Women’s Legal Service Brisbane r.field@qut.edu.au

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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 …”

22. 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.