Supporting CLC Clients in Family Dispute Resolution

1. Supporting CLC Clients in Family Dispute Resolution Dr Rachael Field Professor of Law Bond University Law School rfield@bond.edu.au

2. Family Dispute Resolution (FDR) • FDR is now the preferred initial dispute resolution process in family law parenting matters. • The reforms of 2006 introduced s.60(I) to the Family Law Act, 1975 (Cth) which requires parties to attend ‘family dispute resolution’ (or be exempted) before they are able to file parenting proceedings in court.

3. What is FDR? • S.10F of the Family Law Act defines FDR as: • “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.” • The most common form of FDR is family mediation.

4. Defining mediation (NMAS 2015) Mediation is a process that promotes the self-determination of participants and in which participants, with the support of a mediator: (a) communicate with each other, exchange information and seek understanding (b) identify, clarify and explore interests, issues and underlying needs (c) consider their alternatives (d) generate and evaluate options (e) negotiate with each other; and (f) reach and make their own decisions. A mediator does not evaluate or advise on the merits of, or determine the outcome of, disputes.

5. Positive aspects of FDR in family matters • FDR potentially supports: • party self-determination and empowerment • party ownership of the dispute and generation of options to resolve it • positive, collaborative and cooperative discussions and negotiations between the parties • the articulation of emotions • understanding of each parties’ needs and interests (ie beyond positions) • possible savings in time and resources • a model for future effective/constructive communication between the parties.

6. Potential difficulties • The theory of mediation is not always borne out in practice. • Where there is a power imbalance between the parties, the more vulnerable party may not have a voice, or may have that voice diminished. • Additional variable issues include: the skills and experience levels of the mediator, the model of mediation being practised, the ethics of practice.

7. FDR for vulnerable parties • Coordinated Family Dispute Resolution. • A model designed for matters with a history of family violence which focusses on: • Risk assessment. • A case-managed approach. • Party preparation. • A facilitative model of mediation. • A lawyer-assisted model of mediation.

8. Phase 1: Intake Process 1 • CFDR Coordinator Assessment • Specialist Risk Assessment • Case Management Decision COMMUNICATION SESSIONS RISK ASSESSMENT CASE MANAGEMENT • Phase 2: Preparation for FDR & Intake Process2 • 2 Legal Advice Sessions • 3 Communication Sessions • Preparation Workshop • 2nd Intake Assessment LEGAL ADVICE EXPLANATION Phase 3: CFDR Mediation CLARIFICATION EXPLORATION NEGOTIATION AGREEMENTS • Phase 4: Post CFDR Follow Up • At 1-3 months AND • At 9-10 months • Concludes unless parties are re referred back into CFDR

9. FDR Preparation and Coaching 1. Assisting clients to understand the FDR process • Philosophy of the process. • Steps in the process. • Responsibilities of parties in the process. • The role of the mediator in the process. 2. Negotiation and communication skills coaching

10. Key elements of mediation philosophy • A third party facilitates the process but doesn’t make a decision. • Mediation is interests-based as opposed to positions-based. • Parties engage with each other to negotiate a mutually satisfactory outcome. • There is a focus on party self-determination and party empowerment. • The process is flexible. • There is flexibility to generate options beyond legal remedies, and to tailor solutions and outcomes to the parties specific needs and interests.

11. Mediation Process: 7 generic stages of mediation • Preparatory matters - intake • Mediation meeting • Preliminaries • 1. Mediator’s opening • 2. Party initial statements • 3. Definition of the problem through an agenda • 4. Discussion and exploration • 5. Separate sessions • 6. Generation of options, negotiation and problem-solving • 7. Final decision-making, recording and closure

12. Stage 1: Mediator’s opening statement This stage provides the parties with an explanation of the process and of the mediator’s role and the role of the parties. • Features of mediation. • Impartiality of mediator. • Judgment about genuine effort. • Confidentiality • Parties in control of dispute and outcome. • Mediator controls process. • Setting ground rules. • Assist clients to understand this information before they attend the mediation.

13. Stage 2: Parties’ statements This stage of the process gives each party a voice to articulate their needs, interests and concerns in order to start the negotiation process. • Story-telling. • Each party makes an uninterrupted statement about the issues in dispute and their perspective on those issues. • Mediator summarises each statement and reads it back to the parties. Assist clients to prepare their statement ahead of time, identify their key needs, interests and concerns and be able to articulate their perspective on the issues in dispute.

14. Stage 3: Identifying issues and setting an agenda • The agenda is the ‘road-map’ for discussions, the structuring framework for the negotiations. • The agenda keeps discussions focussed. • Key issues and discussion points are agreed on. • Mediators use neutral language, and avoid blame. • Agenda items are agreed and prioritised. It is important for clients to have identified key issues prior to the mediation, and to feel able to negotiate the agenda times and their priority.

15. Stage 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. • Important for clients to know what to expect in this stage. • Assist clients be informed by the ‘shadow of the law’.

16. Stage 5: Separate sessions • Each party meets privately with the mediator. • Aim is for the mediator to understand how each party is feeling about the progress of 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. It’s important for clients to be ready to use this stage.

17. Stage 6: Facilitating negotiations • Options for agreement are developed. • Options are evaluated, explored and discussed. • Mediator seeks to achieve a mutually satisfactory agreement (or some may just want to achieve any agreement?) It’s important for clients to be able to base viability of options on legal principles.

18. Stage 7: Agreement • Mediator writes up the agreement. • Partial agreements are possible. • Parties are congratulated! • It’s important for clients to have thought through whether they want to have a signed agreement or whether they want to take the draft agreement for further legal advice.

19. Preparing clients for negotiating and communicating in mediation. • Clients should identify any violence at intake if they can, or before the mediation, or in the mediation in a private session. • Vulnerable clients may like to raise the possibility of a shuttle mediation. • Check with DR provider about waiting rooms and if there is a history of family violence assist client with a safety plan for before and after the mediation. • Suggest client visits DR provider to know what the mediation rooms look like. • Advise client to ensure plenty of time to get there on the day – to have as many things organised and ordered so they can focus on the process.

20. Preparing clients for negotiating and communicating in mediation. • Advise client to take notes on legal advice to mediation. • Assist client in preparing the opening statement ahead of time. Assist with writing it down. Encourage clients to practise reading it. • Encourage client to think about what the other party will be saying and wanting. • Help client to identify what they wants out of the mediation before they go in – develop a range of options. • Help client identify what they are prepared to compromise on. • Ask client “What you will do if mediation fails. What alternatives do you have?”

21. Preparing clients for negotiating and communicating in mediation. • Speak to client re active listening. • A – attentive body language: leaning forward, eye contact • C – clarifying questions: “Could you explain that again?” “What you’re saying is …” • T – time out: can indicate appreciation of importance, silence is a form of communication. • I – inquiries (open-ended): to encourage 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 • E - empathetic questions: eg “I can understand you feel that way because …” • S – summarising: eg “So your perspective is …”

22. Preparing clients for negotiating and communicating in mediation. Encourage client to demonstrate active listening: • Ask for time out, a private session, or for a break when they need it. • Use eye contact – particularly with the mediator. • Speak slowly, firmly and clearly. • Breathe slowly and deeply. • Try not to interrupt other party in the process, avoid rolling your eyes, sighing, banging the table, pointing …

23. Preparing clients for negotiating and communicating in mediation. Also encourage client to: • Let the mediator know if they are having trouble/experiencing difficulties. • Reality check what the other party says they want – “But how are you going to manage to pick up the children at that time?” • Use language of the best interests of the children. • Expect the other party to ‘push buttons’ - to try to upset and control the process.

24. Conclusion • Significant potential exists to help ensure a more equitable FDR environment for CLC clients through preparing them for effective participation. • Questions and discussion.