By Jayarupi Pahala Vithana

13 March 2024

This post is the first in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University in 2023. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

What is Family Dispute Resolution?

Family dispute resolution (or ‘FDR’) is a process in which an accredited practitioner helps families to resolve disputes arising from separation or divorce in a non-judicial setting.

An FDR practitioner will help families to create parenting plans setting out future arrangements. The practitioner will help parties to identify the issues they need to resolve and encourage them to consider each other’s points of view, with a focus on arriving at practical solutions that protect children’s best interests. FDR offers families a great degree of flexibility to adjust procedures and outcomes to suit their needs. This process is especially appropriate for the personal nature of family disputes, which impact the welfare of children and concern intimate relationships.

Image: Ketut Subiyanto, Pexels Stock Image

How well does FDR achieve its ideal?  

Ideally, FDR should lead to effective and sustainable agreements. For FDR to provide effective justice, it needs to respond to the needs of all Australian families.

However, Australians from culturally and linguistically diverse (‘CALD’) backgrounds are substantially under-represented in accessing FDR services, according to research conducted by Dr Susan Armstrong of Western Sydney University.

Professor Lola Akin Ojelabi, RMIT, argues that CALD families face numerous barriers to accessing FDR services: a lack of awareness, issues with language, religion, and social norms, or concerns that FDR is tailored for a specific type of ‘Australian’ family and will not suit their needs.

The Evaluation of the 2006 Family Law Reforms showed that FDR services fall short in their responsiveness to the needs of CALD families. That research showed that professionals in the family relationship sector do not feel confident providing services to CALD and Indigenous families. The evaluation also noted that though FDR providers are required to be accredited, their training does not require cultural competency.

Re-Designing Family Dispute Resolution

FDR providers and decision-makers can re-design their processes to be more accessible and effective. Here are some key changes that will improve the quality of justice provided to CALD families.

Work in partnership with CALD and First Nations groups.

Family Dispute Resolution centres should partner with organisations that work with CALD communities. This could involve forging relationships with cultural organisations or employing community groups and elders as cultural advisors. This will promote the visibility of FDR services and the involvement of members of specific cultural groups will help bridge the gap in language and cultural norms, reducing the reluctance of CALD families to access FDR.  

Partnered organisations can be involved in the process of reviewing and improving FDR processes to be culturally appropriate. For example, Victoria Legal Aid partners with Aboriginal-controlled services such as Djirra and the Victorian Aboriginal Legal Service in implementing their frameworks for FDR for Aboriginal and Torres Strait Islander families.

Support FDR Practitioners to ensure their practice is culturally sensitive and self-reflective.

It’s impossible for all practitioners to be knowledgeable about every culture and language, or to be fully across the complex social, cultural, and religious factors that influence a family. What is more important than an encyclopaedic knowledge is the attitude that FDR practitioners bring in communicating with clients of different backgrounds to their own.

FDR practitioners should undertake training on the importance of reflecting on the ways that their own cultural contexts influence their values, biases, and identities. According to Dr Susan Armstrong, a self-awareness of the influence of one’s own cultural framework and a genuine desire to be sensitive in connecting with other people on an equal footing will allow FDR practitioners to create a welcoming and non-judgemental space. Education is necessary to eliminate prejudices or unknown biases. For example, a common bias is the belief that speakers of English as an additional language are less intelligent because of their accented English. Families will feel more comfortable talking to a practitioner who does not speak to them in a patronising tone, and who does not become impatient when they cannot understand an unfamiliar accent.  

Mandatory cultural competency training as part of FDR practitioner accreditation.

A person’s cultural background affects the way their family functions and their priorities in resolving disputes.

Family units and relationships look very different in some cultures compared to others. Professors Ghena Krayem (University of Sydney) and Farrah Ahmed (University of Melbourne) note that for some CALD communities, it is important that respected older family members or community leaders are approached first for guidance in helping resolve family disputes. Their involvement in this process can help provide an affirming experience for the parties. In other cultures, divorce is considered deeply shameful. Parties may want to limit the involvement of extended family in future childcare arrangements or may need to unpack their own feelings of guilt or shame before coming to workable solutions.

Furthermore, red flags that signal family violence look different for different cultures. For example, in South Asian communities, issues of dowry and dowry abuse may be an avenue for financial control or abuse.

A culturally competent FDR practitioner will be aware of these differences when mediating discussions between parties.

Culturally responsive FDR can assist FDR practitioners to ensure that any agreed arrangements protect children’s right to enjoy their culture.  

Employ a culturally diverse staff.

Multicultural or multilingual FDR practitioners and staff can bring an ‘enormous amount of knowledge and experience’ about their communities, according to Armstrong. Clients might find it easier to build rapport and trust if a practitioner speaks their language.  

However, some clients might feel uncomfortable sharing personal matters in front of someone who is from the same background, especially if they are concerned about the person being a part of the same circles as them, or being a non-neutral participant due to cultural influences.

Employing multicultural staff does not necessarily mean that a practice is culturally competent. Even practitioners from diverse cultural/ linguistic backgrounds themselves should be supported to reflect on the influence of their own cultural belief system on their practice.

Formalise processes to ensure a consistent approach.

Although FDR practitioners currently may respond to families’ cultural differences on an ad hoc and case-by-case basis, FDR centres should formalise a culturally responsive approach in a comprehensive, strategic and holistic way.

Screening and intake tools can be adapted to accommodate cultural and linguistic differences so that families are supported from their first interaction with FDR. Formal protocols can be put in place to require FDR practitioners to make culture a visible part of the discussion process.

Armstrong argues that FDRP’s should continually review and assess how they are providing FDR services to CALD families.

FDRPs can ensure referral practices effectively identify and assess cultural contexts, preferences and needs.

The challenge for culturally responsive practitioners: preventing exploitation of culture.

There are legal limits to the ability of FDR practitioners to accommodate the practices, values, and norms of different cultures. FDR practitioners should be clear to participants about the limits of the process and be wary of avoiding falling into traps of cultural relativism that compromise fairness and procedural justice.

Akin Ojelabi warns that vulture can be exploited: FDR practitioners should keep an eye out for the way that cultural dynamics affect the balance of power between parties, and should be careful not to allow their culturally responsive approach to validate giving one party more power over another. For example, women from Iraqi and Lebanese communities have perceived that women are mostly blamed in their communities for family breakups, and their opinions are not always accepted in their traditional culture. However, Iraqi men have expressed that they are treated badly under Australian law. In this example, men may be wary of mainstream Australian FDR practices if they provide an equal standing for a woman’s opinion.

Culture should not be used as a reason to compromise the right to a fair dispute resolution process in such situations.

The call for paper proposals for the 12^th ADR Research Network Roundtable 2024 has been extended to 10 November 2023. Please see submission details below:

The 12th Annual Research Roundtable of the Australasian Dispute Resolution Research Network (ADRRN) will be co-hosted by Western Sydney University, School of Law and the University of Sydney Law School, in Parramatta NSW on Monday 5^th and Tuesday 6^th February 2024.

The ADRRN is calling for papers for the 2024 Roundtable. Paper proposals of no more than 300 words should be submitted via email to a.aftab@westernsydney.edu.au

Presenters will have the option of submitting – prior to the Roundtable – a full draft of the paper for peer commentary. All presenters are invited to publish a 1000-word blog post on the ADRRN Blog at https://adrresearch.net/ after the Roundtable.

Paper proposals that consider dispute resolution from a scholarly, critical and/or empirical perspective are welcome. We particularly encourage submissions from postgraduate students and early career researchers. All proposals will be considered. The focus is on work in progress so usually papers should not have been published or submitted for publication.

The date for notification of acceptance is 17th November 2023. Presenters who are seeking peer commentary on a full draft of their papers should submit the full paper by 5th January 2024 (to allow commentators a month to review).  

If you have any questions or require further information, please contact us at a.aftab@westernsydney.edu.au

We look forward to gathering as a Network and sharing our work-in-progress in February 2024.

Amira Aftab and Ghena Krayem

2024 ADR Research Network Co-Presidents and Roundtable Conveners

In his most recent book Dan Druckman takes the reader on a journey through the three parts of his career: research institutes, consulting firms, and universities. Across the span of his professional years, Dan worked at 16 institutions and has been a mainstay at the International Association for Conflict Management (IACM). An interesting feature of the book is how he managed to weave a triad of overarching themes into this diversified inter-disciplinary career. From his days in graduate school to the present, he has been intrigued by issues of negotiation, identity, and justice. These themes have been pursued assiduously in experiments, case studies, reviews, theory development and in conflict management practice. They are on display in the articles selected for inclusion, ranging from early, middle, and later career contributions and spanning an array of methods, theories, and framework-driven analyses of complex processes.  He also provides rare glimpses of behind-the-scenes networks, sponsors, and events with personal stories that make evident that there is more to a career than what appears in print. A concluding section looks back on how his career connects to classical ideas and the value of an evidence-based approach to knowledge generation. He also looks forward to directions for future research in six areas. For young and established scholars alike, there is much to be learned about the career challenges faced and decisions made by Dan. Dean Pruitt sums up the contributions in his quote: “informative and inspirational reading throughout.” 

http://www.routledge.com/9781032275734

I am very pleased to let the Network know that Professor Laurence Boulle – Bond colleague, longstanding member of the ADR Research Network, one of the founders of the world-famous Bond Dispute Resolution Centre, pioneer of dispute resolution scholarship in Australia and friend and mentor to many in the Australian DR community – has a new book hot off the press!

This is a must-have work for all DR researchers and teachers!

The LexisNexis flyer describes the book this way:

This authoritative text addresses the key themes and issues that are essential knowledge for effective mediation and conciliation practice, including the underlying theories and values, mediation and conciliation procedures and the roles of participants and representatives, the modern practice of mediation and conciliation in Australia and internationally, and the laws that regulate aspects of the process. It also discusses quality, standards and accountability in DR processes and the future directions of practice.

It is essential reading for teachers and students of mediation or conciliation, those who practise in those fields, and judges, tribunal and commission members, lawyers and other officials involved in the many legal facets of mediation and conciliation practice. The wide-ranging topics include discussion on new regulatory requirements, practitioner standards, the role of technology and AI in mediation and conciliation and responses to recent social challenges. Relevant case law impacting areas of practice is extensively covered.

Features

• Provides key information to support mediation practice

• Ensures up-to-date understanding of practice issues

• Authoritative author

• Aligns with mediation standards supporting the NMAS accreditation process

Related Lexis Nexis Titles

• Boulle and Alexander, Mediation: Skills and Techniques, 3rd ed, 2020

• Condliffe, Dispute Resolution: A Practical Guide, 6th ed, 2019

• Field, Australian Dispute Resolution, 2022

• Legg (ed), Resolving Civil Disputes, 2017

You are invited to the 11th ADR Research Network Roundtable 2023

Monday 6^th and Tuesday 7^th February 2023

The 2023 Roundtable will be held in-person at the Faculty of Law, Bond University, Robina, Gold Coast.

Please see more details of the draft program below.

There is no registration fee for the 2023 Roundtable.

Catering will be provided courtesy of Bond University’s Faculty of Law during the day. The Faculty will also coordinate an informal self-funded dinner for participants on Monday 6February close to Bond campus. Participants will be responsible for their own travel and accommodation costs.

Please register using this Eventbrite link: https://www.eventbrite.com.au/e/11th-adr-research-network-roundtable-2023-tickets-505842387197

We are delighted to announce that the 2023 ADRRN Roundtable will be an opportunity for conversation with eminent international scholars.

Professor Julie Macfarlane CM (Emerita Distinguished University Professor of Law, University of Windsor, Ontario, Canada) and Professor Sue Prince (Professor of Law, Exeter University, UK) will be presenting keynote papers on Monday 6 February with the opportunity for personal discussions with these renowned dispute resolution thought leaders.

Keynote Speaker – Professor Julie Macfarlane (Windsor)

Paper title: What ADR Research and Practice Tells Us About the Misuse of NDAs

The widespread and virtually default use of non-disclosure agreements (NDAs) in a wide range of civil settlement agreements rests on twin myths that ADR scholars and practitioners can easily explode. The first is that restricting the use of NDAs to their original purpose of protecting trade secrets and intellectual property will result in a collapse of settlement rates (consistent in common law jurisdictions for 35 years). The second is that the party who is insisting on the NDA (the defendant or their organization) will “walk” if an NDA is refused – whereas taking the matter into the public domain would be an even worse outcome for them.

The structure of NDAs requires that a victim or other plaintiff must protect the confidentiality of the perpetrator or alleged perpetrator in order to be assured their own privacy – an exchange transaction in a negotiation typically characterized by significant power imbalance. Scandals around the silencing of victims of harassment, assault, bullying, fraud and other misconduct have led legislatures around the world, including Australia, to consider restricting the use of NDAs to their original purpose, the protection of trade secrets. The Can’t Buy My Silence campaign, co-founded by Dr Julie Macfarlane and Zelda Perkins, have lobbied for legislation that has passed or is progressing in Ireland, Canada, the US and the UK.

Many mediators and arbitrators have integrated NDAs into their settlement agreements, with a template NDA clause now commonly appearing in settlement releases/ waivers. Some mediators have changed up their terms of mediation to include an indefinite NDA, rather than process confidentiality. What is the ethical and professional responsibility of the third party in this situation? And how can the ADR community educate both lawyers and the public to use confidentiality responsibly and ethically rather than as a means of  silencing victims and covering up misconduct?

Dr Julie Macfarlane has spent her adult life teaching in law schools on four continents, researching and working on progressive causes that she feels passionately about.

Julie is a Distinguished University Professor and Professor of Law (Emerita) at the University of Windsor. Julie’s first job as a law teacher was at University College, Cork (Republic of Ireland) in 1981, and then at Anglia Polytechnic University in England. Julie has also held numerous visiting appointments including at the City University of Hong Kong, the Kroc Institute of International Peace Studies at the University of Notre Dame, the University of Sydney and the University of New South Wales.

Julie grew up on the Isle of Wight and on the Sussex Downs in England. She lived in London, England, in the 1980’s where she completed her doctoral work while working as a parliamentary lobbyist to pay the bills. Learning to write speeches and legislation, and seeing change happen (or not), she caught the activism bug.

After a stint in Hong Kong where she designed a Bar Admission Program and founded a Free Women’s Legal Advice Centre, Julie moved to Canada in 1992. Support from many funders has enabled her to pursue research that tries to better understand, through lived experiences, misunderstood or ill-understood topics: from self-represented litigants to Islamic shari’a to survivors’ experiences reporting sexual harassment and violence.

Julie has received many awards for her work, including the International Academy of Mediators Award of Excellence (2005), the Institute for Social Policy Understanding Scholar of the Year Award (2012), the David Mundell Medal for Legal Writing (2016), one of Canada’s 25 Most Influential Lawyers (2017), the John M. Haynes Distinguished Mediator Award from the Association for Conflict Resolution (2017). She and the National Self-Represented Litigants Project have won multiple CLAWBIES (the Canadian legal “Oscars”!) for her blog, podcast and the project’s resources for self-represented litigants. In 2020 she was named to the Order of Canada.

Julie now writes, speaks, and lobbies on a range of social justice issues.

Keynote Speaker – Professor Sue Prince (Exeter)

Paper title: Coping with the demands of the future: the role of mediation in small claims proceedings in England and Wales

Statistical data has exposed the growing inefficiencies and lack of effectiveness of the courts at the present time, especially of lower courts dealing with small claims matters. Backlogs, the pandemic, cuts to services, the cost-of-living crisis have impacted on the user experience and led to a renewed interest in compulsory mediation. 

Greater investment in court modernisation and technology are all part of His Majesty’s Court and Tribunal Service (HMCTS) Reform Programme. This has been operating since 2016 with a view to modernising processes and practices.  One area of interest to senior policymakers is the use of Online Dispute Resolution (ODR).  This has led to the creation of Online Civil Money Claims (OCMC) process for claimants and defendants which is digital from start to finish.  Similar projects elsewhere in the world have made use of pathways and decision-trees to guide parties along an online route, which includes mediation as an integral aspect of the civil justice process.

Several government bodies and committees have reviewed the effectiveness of current processes related to low value cases.  Relevant reports on small claims (2022); pre-action protocols (2021); and ADR (2021) have all concluded that more focus should be given to increasing the use of ADR.  In the summer of 2022 the Ministry of Justice issued a formal consultation entitled ‘Increasing the use of mediation in the civil justice system’.  In this consultation the government proposed automatic referral to the HMCTS Small Claims Mediation Service, for all cases with a value of less than £10,000 (the small claims limit). 

This paper considers the role of mediation in the current small claims process and asks whether English courts are prepared for a mandatory system in the future.

Professor Sue Prince studied Law at the University of Exeter and completed her PhD in 2003. She has previously held senior University roles including Associate Academic Dean for Students, Associate Dean (Education) and Interim Head of the Law School.  She has been awarded a University Fellowship Award for Excellence in Teaching and is a Principal Fellow of the Higher Education Authority. She is the Director of the new Global Legal Education and Entrepreneurship Lab.

Sue’s research interests focus on access to justice in the civil courts looking particularly at the role of court-based mediation and compulsory mediation. She is currently involved as a consultant in the HMCTS Evaluation of the Opt Out scheme for mediation in civil cases. She has conducted a number of empirical studies of the impact of mediation in the courts for bodies such as the Civil Justice Council and the Ministry of Justice. Sue has published on the topic of mandatory mediation in Canada and has researched and published on mandatory projects in Florida and also in New Orleans after Hurricane Katrina.  She was a member of the Civil Justice Council Advisory Group on ODR led by Professor Richard Susskind, set up to explore the role that Online Dispute Resolution can play in resolving civil disputes in the courts. The initial report was published in February 2015 and has had huge impact on the development of the online courts in England and Wales. Sue was a member of the JUSTICE group on Preventing Digital Exclusion which published its Report in 2018. She has presented on the subject of ADR at the OECD and as part of the ADR Research Network in New Zealand.

Sue is currently on the panel of the national Law Society Learning and Development Steering Group with responsibility for learning design.  She is also working with LawTechUK, a branch of TechNation on the development of start-ups for law students.

DRAFT PROGRAM

Monday 6 February

9:30am-9:45am                                   Welcome and opening

9:45am-11:15am                                 Keynote: Julie Macfarlane (Windsor)

11:15am-12:00pm                               Claire Holland and Judith Rafferty (JCU)

12:00pm-1:00pm                                Lunch

1:00pm-2:30pm                                   Keynote: Sue Prince (Exeter)

2:30pm-3:00pm                                   Break

3:00pm-3:45pm                                   Jennifer Hurley (RMIT)

3:45pm-4:30pm                                   Dorcas Quek Anderson (SMU)

Tuesday 7 February

9:30am-10:15am                                 Lola Akin Ojelabi and Alysoun Boyle (RMIT)

10:15am-10:45am                               Break

10:45am-11:30am                               Nadja Alexander (SMU)

11:30am-12:15pm                               Kathy Douglas (RMIT)

12:15pm-1:15pm                                 Lunch

1:15pm-2:00pm                                   Laurence Boulle (Bond)

2:00pm-2:45pm                                   Emily Schindeler (Griffith)

2:45pm-3:15pm                                   Break

3:15pm-4:00pm                                   Craig Jones (QUT)

4:00pm-4:30pm                                   Closing and future plans

We very much look forward to welcoming you to Bond University for the 2023 ADR Research Network Roundtable!

Professors Jonathan Crowe and Rachael Field, Bond University Faculty of Law

2023 ADR Research Network Co-Presidents and Roundtable Convenors

Monday 6^th and Tuesday 7^th February 2023

The 2023 Roundtable will be held in-person at the Faculty of Law, Bond University, Robina, Gold Coast.

There is no registration fee for the 2023 Roundtable.

Catering will be provided courtesy of Bond University’s Faculty of Law during the day. The Faculty will also coordinate an informal self-funded dinner for participants on Monday 6 February close to Bond campus. Participants will be responsible for their own travel and accommodation costs.

Please register using this Eventbrite link: https://www.eventbrite.com.au/e/11th-adr-research-network-roundtable-2023-tickets-505842387197

We are delighted to announce that the 2023 ADRRN Roundtable will be an opportunity for conversation with eminent international scholars.

Professor Julie Macfarlane CM (Emerita Distinguished University Professor of Law, University of Windsor, Ontario, Canada) and Professor Sue Prince (Professor of Law, Exeter University, UK) will be presenting keynote papers on Monday 6 February with the opportunity for personal discussions with these renowned dispute resolution thought leaders.

Keynote Speaker – Professor Julie Macfarlane (Windsor)

Keynote Speaker – Professor Sue Prince (Exeter)

Details of the draft program are to follow soon.

We very much look forward to welcoming you to Bond University for the 2023 ADR Research Network Roundtable!

Professors Jonathan Crowe and Rachael Field, Bond University Faculty of Law

2023 ADR Research Network Co-Presidents and Roundtable Convenors