Informed, Involved, Inclusive: Laying The Foundations

Posted on 28/11/2024 by Milan A Nitopi

Rory Gowers & Milan Nitopi
This article is Part 1 of 3 in our series ‘Informed, Involved, Inclusive’.

Rory and Milan (left to right) presenting at the 12th Conference World Mediation Forum – Foro Mundial de Mediación in Brazil in November 2024.

Every culture is in conflict; and, we are all moderated by cultural norms and expectations. Where there is more cultural diversity, there is a greater chance for misunderstanding and an escalation of conflict.

In the context of meditation, facilitators who are not equipped with the necessary intercultural competencies risk undermining that process, which can contribute to difficult or unproductive communication and dialogue. Although competencies standards exist (such as the Intercultural Competence Specialisation by the International Mediation Institute), facilitator training in intercultural predisposition is limited.

We presented our proposition to counter this serious gap in mediator development at the 12th Conference World Mediation Forum – Foro Mundial de Mediación in Brazil in November 2024 in our address: ‘Informed, Involved, Inclusive: A New Chapter In Intercultural Competence’. The Mastering Intercultural Mediation Implementation (MIMI) training program is based on three core foundations:

Informed,
Involved, and,
Inclusive.

MIMI is a specific application of the my-RESPECT-ability model which entails the intercultural mediation principles, processes, and practices at the heart of the Intercultural Competence Playbook (Gowers 2023).

Visit my-RESPECT-ability to read more on the model or to enrol in introductory webinars.

In developing the MIMI training program we explored intercultural research concepts and approaches (including Dai & Chen, Sveiby & Skuthorpe, Gowers) as well as drawing on our combined lived experience and extensive mediation practice. Rory has lived in over 7 countries and brings insights from over a decade of real-life intercultural mediation practice (in public, private, and voluntary sectors).

Becoming interculturally competent is more than an intellectual and mindful journey. Therefore we decided it is crucial to centre our training model on participant transformation. As participants become more aware, more accepting, and more appreciative of an ‘other-culture’, they begin to develop competencies which enable them to facilitate intercultural interactions effectively.

An ‘other-culture’ is a class, community or sub-culture of any kind (social status, ethnicity, spiritual, gender identity, wealth, occupation, species, etc.) that is so different that it reveals in you a sense of personal discomfort or powerlessness (such as fear or anxiety or a capacity to interact). It is the feeling of being a total foreigner, in contrast to the feeling of being a relaxed tourist. It may be experienced as a feeling of alienation. This is what people from an other-culture experience when they enter into a new, dominant culture where they lack the capacity or the social skills to interact or negotiate on a level playing field.

Foreigner. 外人 Gaijin. 鬼佬 Gwáilóu. Stranieri. Gudiya. Alien.

The word ‘gudiya’ refers to non-Indigenous people in the context of Aboriginal-English. Indigenous Australians adapted English to communicate with non-Indigenous people after their traditional languages were stolen and is a variety of English, distinct from Australian English.

There are many words to refer to an ‘outsider’ and we all have experienced this feeling at some point in our lives.

Communication and dialogue is an essential and fundamental aspect of mediation, but how do we consider this through the lens of the three cultural motifs:

the Eastern “We”
the Indigenous “Be”
the Western “Me”

In a Western context, ideals such as self-determination and non-partisanship (including neutrality and impartiality) are often discussed as being critical to an effective mediated outcome. But what do these aspects actually mean with consideration of other-cultures?

Whereas in an Eastern context, the ideal of achieving harmony appears critical to an effective mediated outcome. And, in an Indigenous context, ideals of responsibility and collective existence appear critical to an effective mediated outcome. Yet the Western understanding of ‘mediation’ does not translate well with ideals belonging to other-cultures.

We see here that ethical practice is shaped by varying culturally embedded needs and these needs are not exclusive to just one specific cultural perspective. In the context of communication and dialogue, they illustrate the interests, needs, concerns, and expectations of other-cultures. Unless a mediator is interculturally aware, accepting, and appreciative of other-culture perspectives and ethical frameworks, their ability to facilitate effective and enduring outcomes is significantly diminished.

Where all parties to an intercultural dispute are able to express and address their interests, needs, and concerns in culturally relevant ways, then a more creative, sustainable, and harmonious outcome can be achieved.

Mastering Intercultural Competence

Our intercultural competence training model is built on three foundations:

Informed
Involved
Inclusive

Foundation 1: Informed (awareness)

The first foundation is focused on being better informed. By being better informed, we are led to an increased awareness. And, to be better informed we must turn our minds to the facts, feelings, and findings of intercultural research.

This foundation is a structured learning process centered on establishing the baseline knowledge of intercultural competence.

As it has been observed that a person’s experience of other-cultures is both an intellectual and mindful journey, knowledge of an other-culture is not itself enough to develop intercultural competence. Although the International Mediation Institute sets out the minimum standards for intercultural competence specialisation and set the pathway for internationally accepted mediation principles, we recognised that more was required in order to have a complete and comprehensive understanding of an other-culture.

In a Western context, unless we become aware and address our own inner conflict, we are unable to take a ‘balcony view’ of others’ conflict. By failing to adopt a balcony view, we lack impartiality and neutrality; concepts that are cornerstone to Western facilitative mediation practice. However, within other-cultures, a different approach might be taken.

Foundation 2: Involved (acceptance)

The second foundation is focused on being more involved. By being more involved, we are led to a greater acceptance of other-cultures. And, to be more involved we must immerse ourselves within an other-culture and listen to their stories, songs, and symbols.

We created this foundation to allow participants the opportunity to develop a deeper understanding of the other-cultures needs, values, and expectations by providing a full other-culture immersion program. This foundation is the heart of our training model.

This immersion program is crucial as participants must initially feel uncomfortable and confronted with unfamiliar aspects of an other-culture. This makes for a more profound intercultural learning experience. It is ourselves actually undergoing the change where we arrive at a deeper level of understanding and respect for other-cultures and their voice at the ‘table’.

As it takes time to begin immersing ourselves in an other-culture, some participants may elect to extend their immersion program to develop an even deeper understanding of the other-culture that they immersed themselves in.

Immersion is more than assimilation with, or imitation of, the other-culture. In their experience, participants learn respect for the values, needs, and expectations embedded within those other-cultures. It is to understand and accept that our eyes are but only one perspective in the world and that there are many eyes which look upon the face of this earth differently. All perspectives are valued.

Unlike how the International Mediator Institute Standards emphasise mediator proficiency of a particular culture and advocates for cross-cultural application, our approach is focused on competence in intercultural interaction.

To be cross-cultural is not to be intercultural. They are different. ‘Intercultural’ is described by Paula Schriefer as:

“communities in which there is a deep understanding and respect for all cultures. Intercultural communication focuses on the mutual exchange of ideas and cultural norms and the development of deep relationships. In an intercultural society, no one is left unchanged because everyone learns from one another and grows together.”

Foundation 3: Inclusive (appreciation)

The third foundation is focused on being more inclusive. By being more inclusive, we are led to a greater appreciation of other-culture’s wisdom, needs, and ways of working with conflict. And, to be more inclusive, we must turn our minds to choosing the most appropriate principles, processes, and practices of intercultural mediation for that culture.

We created this foundation to allow participants the opportunity to further develop their intercultural mindset and heart-set behaviours. A participant is to adapt their current core principles, practices, and processes to the interests, needs, concerns, and expectations of the other-culture they immersed themselves in.

By putting learnings and reflections into practice, participants are able to accurately identify and address communication and dialogue issues within an intercultural context. This can be achieved with case studies or role play exercises.

Authors Biography

Rory Gowers is a Master of Dispute Resolution (MDR), a Master of Education (MEd), an intercultural mediator, and a business strategist, residing in Greater Sydney, Australia. Rory has extensive international experience as a visionary business problem solver, and certified results coach. Rory’s mission is to facilitate a more respectful world by inspiring people and groups to transform business ecosystems with practical sustainable solutions with a vision to facilitate a place for all and peace for all in our time. Contact Rory via
Webpage: www.myRESPECTability.com
Email: rory.gowers@gmail.com
Mobile: +61 425 292 811
LinkedIn: www.linkedin.com/in/constructiveconflictsolutions

Milan Nitopi is an accredited lawyer and mediator with (soon) a Master of Laws in Family Dispute Resolution (LLM FDR). Milan has a passion concerning people, law, and resolution and he strives to equip people with skills for better communication and dialogue to address all kinds of conflict.
Contact Milan via
Email: manitopi@outlook.com
Mobile: +61 432 547 538
LinkedIn: www.linkedin.com/in/manitopi/

Motivating people to engage in conflict resolution services

Posted on 21/11/2024 by Milan A Nitopi

Samantha Hardy
This article has been republished and adapted with permission. The original publication can be located within The Conflict Management Academy.

When we look at how people typically promote conflict-related services, such as mediation, the services are often presented as a better option than other alternatives. In fact, this thinking is even found in the name “alternative dispute resolution”.

However, psychological research shows that using ‘scare’ tactics to try to motivate someone to do something tends not to work. This can be explained by what Wayne Hershberger (1986) first called “the law of approach and avoidance” and means that we tend to move towards pleasure and away from pain.

While you might think that telling someone about all the bad things that might happen if they leave their conflict unresolved would motivate them to move away from those bad things towards something better (e.g. mediation), the problem is that we have promoted our service by reference to the bad things, so they may well subconsciously move away from us!

When we feel an emotion that we find unpleasant, our brain’s natural response is to move away from the thing related to that emotion. In contrast, when we feel an emotion that we find pleasant, our brain is wired to approach.

However, in Shari Talbot’s book The Influential Mind, she explains that when we are trying to influence someone to do something, we have to be careful how we apply this logic. While we tend to move away from something that we see as unpleasant, we can also stop moving altogether if we are not sure about what we are moving towards.

Our brains are wired in such a way that anticipating a reward not only triggers approach, it is more likely to elicit action altogether. If you want someone to act quickly, promising a reward that elicits an anticipation of pleasure may be better than threatening them with a punishment that elicits an anticipation of pain.

In short – if we are trying to avoid something bad, we may move away from it, but we may also freeze if we are uncertain about what lies ahead of us. In contrast, if we know that something positive and rewarding lies ahead of us, we are more likely to actively take steps towards that better option.

This works for both words and images.

A study of crowd funding requests carried out by Alexander Genevsky and Brian Knutson in 2015 examined 13,500 online requests for funding. These requests were often for financial support for people needing expensive medical treatment, and counter-intuitively, the research found that crowd funding requests were more likely to raise money if they showed someone happy and well rather than someone sick in a hospital bed.

If you search online stock photo libraries for photos relating to “conflict resolution”, you will perhaps be surprised to find that many of the images do not illustrate “resolution” but rather show people in conflict.

Here are some examples:

As well as the law of approach and avoidance, we need to consider people’s need for a sense of certainty and control.

Warnings and threats limit people’s sense of control, so instead we need to emphasize what needs to be done to reap rewards – which increases their sense of control.

So, what does this mean for marketing a service like mediation?

Firstly, talk about the benefits that clients will achieve by participating using an approach framework. Don’t just talk about the bad things they will avoid; also talk about the good things they will gain so that they can manage risk and also know what they can work towards.

Secondly, emphasise the client’s opportunities to make choices and take control of their future.

Thirdly, use positive images on your website, that show how people will feel and behave after they have used your services.

Here are some examples:

Review your promotional material. If you want to make sure you are marketing your mediation services effectively, think about how much of your content is about what clients can avoid by engaging your services and how much of your content is about what clients can gain (rewards, pleasure) by engaging your services.

Think about the kinds of images you use. Consider whether those images show the problem a client wants resolved or how the client will feel after they work with you? Consider ideas that describe the outcomes people will gain from working with you and the associated positive emotions that those people will elicit.

Author Biography

Dr Samantha (Sam) Hardy is the Director and Lead Trainer of the Conflict Management Academy. Sam is an experienced mediator, conflict coach, and the founder of the REAL Conflict Coaching System™. She provides conflict support to managers and leaders across the world as well as professional development training, supervision and mentorship to mediators and coaches who work with clients in conflict. Sam is an accredited mediator under the Australian National Mediation Accreditation System (NMAS), a certified transformative mediator by the United States Institute of Conflict Transformation, and a certified narrative coach. She has been awarded Conflict Coach of the Year at the Australian Dispute Resolution Awards in 2022 as well as the Australian Resolution Institute Award for Service to Dispute Resolution in 2021 for her leadership and innovation in the field. Sam also publishes widely in dispute and conflict resolution, including Dispute Resolution in Australia, Mediation for Lawyers and Conflict Coaching Fundamentals: Working with Conflict Stories.

Defending Community Mediation: The Urgent Need to Save the CJC

Posted on 14/11/2024 by Lisa Toohey

This is a post by guest author, Professor Lise Barry. Professor Barry is Dean of Macquarie Law School and editor with David Spencer and Lola Akin Ojelabi of the 4^th and 5^th Editions of “Dispute Resolution in Australia: Cases, Commentary and Materials” (Thomson Reuters). Lise is an accredited mediator and has been a member of the NSW Community Justice Panel since 2004.

On 17^th October this year, I received a surprising email from the Department of Communities and Justice, announcing that the Government had decided to close down the Community Justice Centre (CJC) in NSW and repeal The Community Justice Centres Act 1983 (the Act), which establishes and governs the operation of the service, effective 30 June 2025. Mediators are in the dark about the basis on which this decision has been made.

What a terrible loss to the community. To understand a little about the CJC it is useful to look at its history.

CJC was established as a pilot in 1980. Writing at the time of the creation of pilot program for CJC, Deputy Chief Magistrate Kevin Anderson wrote:

“To a magistrate who has for years been acutely conscious of the failings of the conventional justice system, Community justice Centres hold great promise. The Community Justice Centre pilot project is an important development in the evolution of law and society in this country. The experiment deserves support.”

Introducing the Community Justice Centre Act of 1980, the then Attorney General and Minister for Justice, the Hon Frank Walker QC, echoed the hope that “the availability of mediation will ease significantly the present burden on magistrates courts in dealing with minor disputes where the cost and emotional upset involved are entirely disproportionate to the results achieved at the hearing.” Mr Walker praised “the 106 people from all walks of life and representing most ethnic communities who have shown such enthusiasm and dedication in their training to be mediators.”

I was struck when reading about the recruitment of mediators for this new service. The Law Foundation of NSW conducted the pilot review, noting,

“Two or three hundred people initially applied for selection at each of the three centres…. Each centre aimed to recruit a group of trainees which was diverse in age, sex, educational background and country of birth. Further criteria for selection included such personal characteristics as tolerance, assertiveness, and ease of manner.”

These are qualities that todays’ mediators would also do well to possess.

By 2001, the name “Community Justice Centre” had made its way into the Macquarie Dictionary, defined as “a centre offering a free and confidential mediation services as an alternative to normal legal channels in disputes between parties who have an on-going relations, as members of a family, neighbours, etc.” (Macquarie Dictionary 3^rd ed, 2001, 396).

2002 saw the development of Indigenous mediation services, initially in the Northern CJC region, resulting in accreditation of 63 Indigenous mediators trained in NSW by the year 2006.Writing about the Indigenous service in the Indigenous Law Bulletin of 2006, Bill Pritchard, Senior Aboriginal Programs Officer at CJC wrote: “The acceptance of the program by Indigenous people and communities is reflected in the number of mediations undertaken by CJCs where at least one party identifies as Aboriginal or Torres Strait Islander.” He noted the rise from 62 cases in 2001/2002 to a reported 258 mediations undertaken in the 10 months to 1 May 2006.

In 2004, in preparation for a Law Reform Commission Inquiry into CJC, a survey of CJC clients was conducted and the findings published in Report 12. 76 mediation participants were interviewed, almost half of them neighbours, with approximately one third reporting that an Apprehended Personal Violence Order was involved. Participants commented on the mediators skill, the opportunity for discussion, avoiding court and that the service was free. Interestingly, the most common suggestion of participants was to increase public awareness of the free service.

Success rates for CJC are high. Report 12 noted “Of the 2,786 cases that were mediated at CJCs between 1 July 2002 and 30 June 2003, 82% resulted in an agreement between the parties.” 76% of participants reports that mediation had improved their situation. Today, CJC fact sheets report that over 80% of participants reach an agreement.

In 2005 a further review of CJC by NSW Law Reform Commission Report 16, recommended the inclusion of an objects clause into the CJC Act. Relevantly, the current Objects of the CJC Act read:

3 Object of Act

The object of this Act is to provide for the establishment and operation of Community Justice Centres for the purpose of:

(a) providing dispute resolution and conflict management services, including the mediation of disputes, and

(b) training persons to be mediators, and

(c) promoting alternative dispute resolution, and

(d) contributing to the development of alternative dispute resolution in New South Wales by entering into connections and partnerships with the legal profession, courts, tribunals, the academic sector and other providers of alternative dispute resolution services, and

(e) undertaking other matters incidental to the provision of dispute resolution and conflict management services.

The 2005 Report noted that the CJC mediations were conducted “by Mediators who provide their services on a sessional basis (receiving small remuneration)…” The small remuneration remains true, with mediators currently earning $41.60 per hour – this is a role that CJC mediators take on for love, not money.

You can imagine then how disappointed some long-term mediators were, some of whom had over 30 years of service to the community of NSW, when they were provided with two lines of thanks for their service in the emailed announcement.

One of those long term mediators was Barbara Jean Armitage OAM, who sadly passed away on 29^th October this year, her SMH obituary noting, that Barbara was a “Feminist, committed activist and crafter, life member of the Australian Labor Party. Waverley Municipal Council Alderman 1979-1997, Mayor of Waverley 1987-1997, Local Government Grants Commission Chair 1999, Premier’s Crime Prevention Council member and accredited mediator with the Community Justice Centre.” Barbara’s pride in her service as mediator so clear and so poignant.

CJC mediators are well trained. I fondly recall the three weeks of full-time training that I undertook before commencing work with CJC. More recently, CJC have provided much needed supervised experience for new mediators and are a source of much needed accreditation hours for panellists for whom mediation is a passion, but not a full-time job. They have been the Recognised Mediator Accrediting Body for hundreds of mediators in NSW.

The initial email I received, advised that the Dept Community and Justice will be establishing a new inhouse mediation service for court mandated referral from 1 July 2025. Advice to the current panel members suggest that this service will primarily be in connection with the Crimes (Domestic and Personal Violence) Act 2007.

While services for victims of domestic and personal violence are desperately needed, the dissolution of the CJC will be a terrible blow to the community.

In the 20 years of mediation I have completed for CJC, I have helped countless neighbours resolve disputes about everything from trees, to noise, to construction, to parking. I have mediated employment disputes about pay, bullying and harassment and disputes over promotions. I have mediated commercial disputes, assisted local registers to manage unrepresented litigants on List Days, mediated disputes between builders and homeowners, between committee members of small craft organisations, and multi-party disputes involving community groups. I have assisted separating couples with property disputes and worked with tenants in disputes with their landlords and mediated disputes between parents and teenagers and between schools and chronic school avoiders. Not a single client paid for these services.

The decision to close CJC is likely to lead to increased legal costs, drawn out and escalating disputes, pressure on local councils and the Land and Environment Court who rely on CJC to manage so many tree and fencing disputes, and of course, pressure on disputants. As several of my fellow mediators have asked, what steps will be taken to manage the increased pressure on police and the court system, once CJC is closed?

Many incorporated community associations, who have a constitution based on the Model Rules provided by Fair Trading, and which directs associations to CJC for mediation in the event of disputes, will be affected by the decision. What will be done to manage the impact on these associations?

s9 of the Model Constitution currently reads

Resolution of internal disputes
The following disputes must be referred to a Community Justice Centre within the meaning of the Community Justice Centres Act 1983 for mediation:
a dispute between 2 or more members of the association, but only if the dispute is between the members in their capacity as members, ora dispute between 1 or more members and the association.

If the dispute is not resolved by mediation within 3 months of being referred to the Community Justice Centre, the dispute must be referred to arbitration.

On Tuesday 12^th November, the Hon Gareth Ward put a question on notice to the Premier: “I have in my hand documents indicating that the Government will be closing Community Justice Centres and sacking mediators across the State, who provide a valuable service. Will the Premier reverse these cuts?”

Let’s hope the answer will be yes.

The CJC has been a cornerstone of alternative dispute resolution in New South Wales, providing free and effective mediation that has benefited countless individuals and communities. The loss of the CJC will not only increase the burden on our legal system but also deprive many of a crucial resource for resolving conflicts amicably. I urge all mediators, legal professionals, and supporters of community justice to lobby the government to reconsider this decision.

The Problem with ‘Genuine Effort Certificates’ in Family Law and Options for Law Reform

Posted on 01/11/2024 by jessmant

Emma Mills
Monash University

In Australia, most parents who are trying to resolve a parenting dispute must first attempt family dispute resolution (‘FDR’), usually in the form of mediation. This must be done before commencing family law court proceedings. If FDR is unsuccessful, a family dispute resolution practitioner (‘FDRP’) will issue parties with a certificate to take to the court, which outlines why parties were unable to resolve their dispute during FDR. These are known as ‘genuine effort certificates’. However, genuine effort certificates given by FDRPs pose many issues, such as the lack of clarity about what a genuine effort looks like, lack of consistency and negatively impacting vulnerable parties. Due to these issues, I argue that changes should be made to the Family Law Act (‘FLA’). Specifically, I propose two separate solutions that could be considered. First, I propose that genuine effort should be a term that is defined in the FLA and second, that genuine effort certificates should be abolished and replaced with attendance certificates.

What is the genuine effort certificate and FDR?

In 2006, the Australian Government introduced changes to improve the Australian family law system. The main reason behind the sweeping reforms was to find ways for parents to come to a parenting agreement collaboratively, rather than commencing legal proceedings. Due to these reforms, attendance at FDR is effectively a pre-requisite for family law matters involving children. FDR is where a FDRP, who is independent to the parties, acts as a mediator to facilitate parties coming to a solution between themselves, so that they can seek to resolve their dispute outside of court. A court is unable to hear an application regarding a parenting dispute, unless a genuine effort certificate is issued by a FDRP or an exception applies. The certificates are based on whether parties have made a ‘genuine effort’ to participate in FDR. For example, a parent could be issued with a certificate that says that they ‘did not make a genuine effort to resolve the issue’ (‘non-genuine effort certificate’). The type of certificate issued can determine whether the court decides to send parties back to FDR and can be a consideration when determining to award costs against a party.

As a result of the genuine effort certificate scheme, FDRPs have been referred to as being ‘gatekeepers to family courts’. There are some advantages to this. For instance, the genuine effort requirement places an obligation on parties to take responsibility to resolve the dispute before going to court. Following the introduction of the FDR requirement, there was a 25% reduction in court filings and parties reported high levels of satisfaction with the process. However, genuine effort is not defined in the FLA. The FLA does not provide any guidance as to what circumstances, conduct or factors constitute a ‘genuine’ or a ‘non-genuine’ effort. This means that the implementation of this requirement is problematic in practice.

What are the negative impacts of the genuine effort certificates?

Undermining the Impartiality of a Mediator

The main role of a FDRP in mediation is to be ‘independent’ from parties. The neutrality of the FDRP is a fundamental component of the practice of mediation. Neutrality is described as going ‘to the heart’ of mediation theory and means ‘freedom from bias’. Field and Crowe talk about the ‘folklore of neutrality’, which suggests that true neutrality can be difficult to achieve. This concept is especially true in the context of the genuine effort certificates.

When issuing a genuine effort certificate, FDRPs must make a subjective judgement about whether each party has genuinely attempted FDR. The FDRP may have to make a judgement about whether the party has acted reasonably. This can occur in situations where a party refuses to move from their initial position, which could be perceived as the party being unrealistic and unreasonable by the FDRP. Also, whilst FDRPs are trained to be as objective as possible, decisions about whether parties have been genuine in their effort may be unavoidably influenced by their own personal values, experiences and subconscious biases, particularly in the context of family and separation. This can mean that FDRPs may potentially act in a biased way when deciding on the type of certificate to issue.

The genuine effort requirement, therefore, places immense pressure on FDRPs to make a judgement about how they perceive each party to be genuinely participating in the process. This function is arguably well beyond a FDRP’s scope as mediators, when they take on a role of being an ‘assessor’. The requirement for a FDRP to issue a genuine effort certificate is a legislative obligation that overrides the fundamental obligation of FDRPs to treat parties impartially, which is central to mediation.

Lack of Clarity and Consistency

As discussed earlier, the FLA does not define genuine effort. Therefore, whether a party has genuinely participated in FDR is a highly subjective analysis which must be undertaken by FDRPs in the absence of guidance on how a genuine effort is to be determined. Due to the lack of clarity, pressure is placed on parties to appear reasonable and cooperative, so that they can satisfy the individual FDRPs perception of genuine effort. This strain may impact parties to the extent that they do not feel like they can participate in the process in a full and frank manner, or negotiate effectively. For example, parties may change their behaviour, possibly to their detriment, if they know that the FDRP will be making a judgement about their behaviour. This strain placed upon parties, lawyers and FRDPs is a result of the genuine effort requirements being unclear and undefined.

Since there is no definition of genuine effort, it is extremely difficult to promote consistency in the issuing of genuine effort certificates. FDRPs are often influenced by a range of factors, including their prior professional experiences and their personal views. This can mean that there is a lack of consistency for parties, which can create apprehension about what certificate they may be issued. Therefore, due to the lack of clarity about what is a genuine effort, it creates an area of law that is inconsistent and unreliable.

Gendered Implications

For parties to appear as though they are genuinely participating in the process, it is likely that the party must present as rational, reasonable and cooperative. This poses a risk for parties who may appear difficult, angry or unreasonable, to be seen as not genuinely participating. This expectation can create problems, especially for vulnerable individuals, who might not fully understand what is expected of them.

Viewing this through a gendered lens, Rachael Field argues that women are more likely to face unfair judgements and to be labelled as being ‘unreasonable’ after separation. This can make it harder for women to show FDRPs that they are genuinely trying to participate in the process. After separation, women are often already enduring gendered disadvantage, such as distress, poverty or repercussions of family violence, which can affect both how they behave and how their behaviour is perceived during FDRP. Also, when FDRPs evaluate how genuine parties are, they may be influenced by their societal views and values of women, including what they consider to be stereotypically feminine behaviour. This raises the possibility that if a woman behaves in a way that falls outside of gendered norms, she may then be issued with a non-genuine effort certificate. This can worsen the post separation vulnerability that women experience, especially if they then run the risk of receiving a cost order against them once the case progresses to court.

What are the solutions?

As discussed, the way that genuine effort certificates are operationalised in practice may undermine the overall aim of increased participation in FDR for parenting disputes. There are two separate potential avenues for reform that I will now consider, which could assist in working towards addressing these problems.

Defining Genuine Effort

As mentioned earlier, the lack of clarity around what counts as a genuine effort in FDR creates significant problems, especially for vulnerable parties and women post separation. Without a clear definition of genuine effort in the FLA, it reduces consistency for parties. Therefore, one solution is that the FLA should be amended to include a definition of genuine effort. This definition would provide a guideline for FDRPs, lawyers and parties. For example, the Migration Act 1958 (Cth) includes a provision where the holder of a certain visa has made a ‘genuine effort’ to commence employment or engage in business. A list of factors is included to help with the assessment of what is considered genuine effort in the circumstances. Whilst the factors included in the Migration Act are not helpful in assessing genuine effort in FDR, this provides an example of how the FLA can include such guidelines to assist in the interpretation of genuine effort.

The possibility of using a list of factors has already been considered by leading family law scholars. For instance, Hilary Astor suggests that a definition of genuine effort should include factors such as the ‘willingness to consider options put forward by the other party’, ‘willingness to consider putting forward options’ and ‘willingness to focus on the needs and interests of the children’. These factors would help to give parties a guide on how they should act in FDR. These factors align with broader comments made by Einstein J in Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 [at 156], where he says that parties should be open minded and receptive in mediation and be willing to put forward options for a resolution.

These factors, therefore, could be legislated in the FLA. This would provide much needed clarity about what genuine effort means, which would in turn help to create consistency and provide parties with a clearer understanding about what is required of them during FDR.

Abolishing the Genuine Effort Certificate

There are significant issues with issuing genuine effort certificates, which defining genuine effort in the FLA cannot alleviate alone. Therefore, an alternative solution that has been suggested is to abolish the types of genuine effort certificates issued altogether. Whilst defining genuine effort in the FLA may be of some assistance, determining whether parties are giving a genuine effort in FDR is still highly contextual in nature and would still require the FRDP to make a discretionary judgement. Simply providing FDRPs with a set of factors to be considered may not resolve the issue of FDRPs making a subjective decision about the type of certificate to issue or clarify FDRPs’ role within mediation.

Instead, through abolishing the types of genuine effort certificates issued, the FDRP would instead issue an attendance certificate. This would simplify the process and would just require the FDRP to note whether participants did or did not attend FDR. An attendance certificate would help FDRPs to maintain their position of independence and neutrality within mediation, and would eliminate the issues around the lack of clarity and consistency. It would also help to alleviate the potential repercussions for parties who are issued with a non-genuine effort certificate, especially for women post separation. In addition, without having to assess parties’ behaviour, it would enable FDRPs to focus on their main goal: to assist parties to find a workable arrangement between themselves.

Next Steps

Whilst the genuine effort requirement has been an important factor in encouraging parties to try and resolve their parenting disputes through FDR, its implementation poses issues for parties, lawyers and FDRPs. In this post, I have proposed two separate pathways that could be followed to begin to address these problems. Introducing a factor-based definition of genuine effort into the FLA provides a small, short-term adjustment that can assist in clarifying the standard of genuine effort for parties. On the other hand, a more radical, longer-term solution is to abolish the genuine effort certificates altogether and replace them with mere attendance certificates. Attendance certificates would remove the evaluative function of FDRPs altogether, whilst still mandating engagement with FDR.

Author Biography

Emma Mills is a Law and Criminology student in the Faculty of Law at Monash University. Emma has a particular interest in social justice and volunteers with the Epilepsy Foundation in her spare time. After graduation, Emma wants to pursue a career in family law and to dedicate herself to creating a fairer legal system.