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


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Family Dispute Resolution and Victims of Violence: Potential Roles for CLCs Rachael Field Faculty of Law QUT r.field@qut.edu.au. Family Dispute Resolution. “a process (other than a judicial process):

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

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Family Dispute Resolution and Victims of Violence:

Potential Roles for

CLCs

Rachael Field

Faculty of Law QUT

r.field@qut.edu.au


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


Mediation Process

  • 7. Making an agreement.

    • Mediator will write up agreement.

    • Sometimes not everything is in the agreement – partial agreement.

    • Parties are congratulated!


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.


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?


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.


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.


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.


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.


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