“Safe and supported”: Developing a model for mediating family violence cases beyond family law

Posted on 24/04/2017 by Associate Professor Becky Batagol

Dr Becky Batagol, Monash University & Professor Rachael Field, Bond University

Email contacts: Becky.Batagol@monash.edu; rfield@bond.edu.au

This post comes from work we are doing together focusing on how to appropriately identify and respond to cases of family violence in mediation practice outside the area of family law.

This is our first time working together, after many years of knowing each other (we met at the National Mediation Conference in 2000). As two feminists, we are convinced that there are ways to make dispute resolution processes safer and more supportive for the women who must use them who are also victims of family violence. The project brings together Rachael’s expertise in crafting and evaluating a model for mediating family violence cases in family law through the Coordinated Family Dispute Resolution program and Becky’s expertise in family dispute resolution and follows from her work as a consultant to the Royal Commission into Family Violence in 2015. (The views here are the views of the authors and not of their employers or organisations they have worked with previously).

Our work in this area is developing, and our thinking here is not final. We welcome your email or comment feedback. This post was developed from presentations at the 5^th Annual Australian Dispute Resolution Research Network meeting in Hobart in December 2016 and at the AIJA Non-Adversarial Justice Conference, Sydney in April 2017.

tom simpson FV

Photo credit: Tom Simpson

Our aim in this project is to flesh out key elements of a safe and supported model of mediation in cases involving family violence that can be used across a range of contexts.

A great deal of attention has been paid to mediating cases of family violence in the field of family law. Outside the family law field, little attention has been paid to how to appropriately identify and respond to cases of family violence in mediation practice.

In our work together we are using what we have learned from family law dispute resolution to flesh out key elements of a safe and supported model of mediation in cases involving family violence that can be used across a range of contexts.

Beyond family law, there are a range of other contexts where dispute resolution professionals will have an ongoing role in dealing with the consequences of family violence eg

disputes with providers of essential services, such as electricity, water, banking and telecommunications, as a result of economic abuse
child protection conciliation conferences/ADR in state Children’s Courts
the negotiation/mediation process that takes place in finalising the conditions of family violence orders in state magistrates’ courts, and
restorative justice contexts as an adjunct to the criminal and family violence system

We believe that the imperatives relating to dispute resolution and family violence remain broadly similar regardless of the context. There is a legitimate concern about the use of informal dispute resolution processes in cases of family violence because of deep power imbalances between perpetrators and victims. On the other hand, with a focus on safety and with appropriate support and careful attention not to minimise the violence, there are clear potential benefits of mediation for victims of family violence which can include self-determination, certainty, reduced financial and other costs and timeliness.

We use the Coordinated Family Dispute Resolution model pilot to inform an analysis of the potentialities and possible pitfalls of the use of dispute resolution in the contexts outside family law

Context: Coordinated Family Dispute Resolution

In 2009, the Australian Federal Attorney-General’s Department commissioned a specialised model of family mediation for matters involving a history of domestic violence. The Coordinated Family Dispute Resolution model (CFDR) was piloted between 2010 and 2012 in five different locations around Australia, and evaluated by AIFS. CFDR was designed to support parties with a history of family violence to achieve safe and sustainable post-separation parenting outcomes. The model’s design sought to provide a multidisciplinary approach within a framework designed to specifically address some of the issues arising from a power imbalance resulting from a history of domestic violence. AIFS noted that the model is comprised of four case-managed phases which are implemented in ‘a multi-agency, multidisciplinary setting (which) provide a safe, non-adversarial and child-sensitive means for parents to sort out their post-separation parenting disputes’.

Eventually, funding was not provided for full roll-out of model due to political, resource and funding issues, although the fight for funding for CFDR continues.

The CFDR model was complex and multifaceted as the table below shows:

CFDR

The special features of CFDR which work together to create the potential for safe and just outcomes – and which could be integrated into the diverse dispute resolution contexts we discuss further below – include:

A coordinated response

The CFDR model demonstrated that it is important to bring a range of professionals together including government and community agencies to achieve a safe process, and it is critical that these diverse agencies and professionals share information and communicate effectively with each other.

2. A focus on specialist risk assessment

A critical element of the CFDR model was the integration of specialist risk assessment across the model’s practice which maintained the safety of the participants, and particularly the victims of violence and their children, as the highest priority. The safety focus of the risk assessment process went significantly beyond the usual FDR intake screening process which predominantly assesses that the parties’ have the capacity to participate effectively in the mediation process. These specialist risk assessments were conducted only by qualified and experienced DV and men’s workers with highly developed risk assessment skills, including an ability to identify ‘predominant aggressors’ of family violence.

3. The use of a legally assisted, facilitative model of mediation

In CFDR, a facilitative, problem-solving model of mediation was practised. This was because the goal of CFDR mediation was acknowledged as being to assist the parties resolve disputes about parenting safely, rather than to have a transformative effect. The design of the model acknowledged that it is not possible – in the 3-4 hours of a mediation session to have a transformative effect on perpetrators of violence. The best way to promote the safety of victims and their children was to support the making of relatively short-term parenting decisions. Transformative changes in a perpetrators violent behaviour may be possible but require the support and expertise of professional men’s behavioural change workers.

4. Special support measures needed to respond to domestic violence in mediation

The CFDR model also featured a number of additional special measures to protect the safety of victims and children. These measures were designed to support the hearing of the parties’ voices, and enable the parties to reach post-separation parenting agreements that upheld the best interests of the children. One such special measure was the acknowledgement of the concept of a ‘predominant aggressor’ in the model

5. Listening to the child’s voice

The involvement of children in CFDR mediation was not part of the general pilot process although the model as it was developed argued for inclusion of a professional children’s worker. If the child’s voice was included in the process it was only as a result of a decision by the CFDR team of case management professionals, and after careful analysis of the safety implications of this approach. Only appropriately trained and qualified ‘children’s practitioners’ could be asked to participate in CFDR to support the hearing of the child’s voice. These practitioners were required to have extensive clinical experience working with children and family violence.

The pilot was evaluated by the highly respected researchers at the Australian Institute of Family Studies under the leadership of Dr Rae Kaspiew. A number of the evaluation findings affirmed the efficacy of the design elements of the model in terms of facilitating the safe and effective practice of family mediation where there is a history of domestic violence. For example, it was found that adequate risk assessment for the parties’ safety and well-being is critical in domestic violence contexts; preparation for the parties’ participation in the process was key; and vulnerable parties have more chance of making their voice heard in mediation in the context of lawyer-assisted models, as long as those lawyers are trained adequately in dispute resolution theory and practice. In short the report said that CFDR was ‘at the cutting edge of family law practice’ because it involved the conscious application of mediation where there had been a history of family violence, in a clinically collaborative multidisciplinary and multi-agency setting.

Context: Royal Commission into Family Violence

The work of the Victorian Royal Commission into Family Violence, has shown that an understanding of the nature of family violence and an ability to identify and respond to cases of family violence is central to the work of anyone working in law and dispute resolution in a number of diverse fields.

The Victorian government set up the Royal Commission in 2014 to examine and evaluate strategies, frameworks, policies, programs and services and establish best practice for four areas – the prevention of family violence; early intervention; support for victims of family violence, particularly for women and children; and accountability for perpetrators of family violence. The Royal Commission was also asked to investigate means of ensuring systemic responses to family violence, investigate how government agencies and community organisations can better integrate and coordinate their efforts, and make recommendations on how best to evaluate and measure the success of strategies and programs put in place to stop family violence.

On 30 March 2016, the Victorian Parliament tabled the report of the Royal Commission into Family Violence. The report represents the culmination of 13 months of work by Australia’s first ever Royal Commission into family violence.

The Royal Commission’s report contains 227 recommendations. The Victorian government has committed to implementing all recommendations in the report, regardless of the cost. The Commission stated that its ‘recommendations are directed at improving the foundations of the current system, seizing opportunities to transform the way that we respond to family violence, and building the structures that will guide and oversee a long-term reform program that deals with all aspects of family violence’ (Summary and Recommendations, p.14).

We focus here on the recommendations which will affect the way in which a range of dispute resolution professionals will have an ongoing role in dealing with the consequences of family violence in our society.

Family violence-related debt disputes

Economic abuse is a form of family violence and is recognised as such in a few Australian jurisdictions.

The Royal Commission heard that most women who seek assistance for family violence issues leave their relationship with debt. Through the use of deception or coercion, perpetrators may avoid responsibility for a range of debts and leave their former partners with substantial liabilities (RCFV Report, Volume IV, chapter 21 p.102). This is a form of economic abuse, which is increasingly recognised as a form of family violence across the Australian jurisdictions. A recent RMIT analysis of ABS data showed that nearly 16 per cent of women surveyed had a history of economic abuse.

Women who have family violence-debt often have trouble negotiating the consequences of that debt with service providers. In their report Stepping Stones: Legal Barriers to Economic Equality After Family Violence, Women’s Legal Service Victoria noted that ‘service providers such as energy retailers, telecommunication services and banks have low awareness of the difficulties faced by women experiencing family violence and are unhelpful when interacting with these customers.’ Professor Roslyn Russell has recently shown how staff in bank branches and call centres report dealing with customers who are experiencing, trying to leave, or have left abusive relationships, yet there is limited training for banking staff on family violence.

A major proportion of Australia’s dispute resolution services are offered through industry ombudsman and complaint handling services such as the Victorian Energy and Water Ombudsman and the Commonwealth Financial Services Ombudsman and Telecommunications Industry Ombudsman. These services often use a combination of mediation, negotiation and conciliation to resolve disputes. It is clear these services are dealing with many disputes that arise with service providers as a result of family violence. Because such services are not part of the family violence system they may not have policies or training in place to identify or adequately address financial abuse and family violence.

The Royal Commission recommended that

the Victorian Energy and Water Ombudsman and the Commonwealth Financial Services Ombudsman and Telecommunications Ombudsman publicise the availability of their dispute-resolution processes to help victims of family violence resolve disputes (Recommendation 110)
comprehensive and ongoing training of customer service staff take place to help them identify customers experiencing family violence (Recommendation 109).

The Royal Commission’s recommendations are designed to develop employees’ capacity to understand, identify and respond to family violence within industry dispute resolution schemes so that victims of family violence can continue to access essential services such as household energy, water, telecommunications and financial services.

Negotiating family violence consent orders

Family Violence Intervention Orders (FVIOs) (also known as protection orders and apprehended violence orders in other jurisdictions), are orders made by the courts to protect a person from another family member who is perpetrating family violence.

There are often conditions attached to FVIOs which set out exactly what the perpetrator must do or not do in order to stop committing, and to prevent the future commission of, family violence. In Australia, FVIOs are made by state Magistrates’ courts.

The Royal Commission noted that ‘a high proportion’ of FVIOs are made by consent which means that the parties to the intervention order agree themselves to the FVIO and the conditions attached to the order which the Magistrate merely formalises (RCFV Report, Volume III, Chapter 16, p.134).

There is an incentive for perpetrators to settle orders by consent in the Victorian system because they can be made without the perpetrator admitting to any or all of the family violence allegations set out in the FVIO application.

However, for victims, there is a clear danger inherent in the negotiation process for consent orders, as described by the Commission:

‘the negotiation process involved in arriving at an order by consent may be opaque and variable depending on the situation, the parties and the presence of legal representatives. If there is a history of family violence between the parties, with everything that can entail – including an imbalance of power, fear, vulnerability, and the possibility of manipulation and coercion – it is extremely important that the negotiation process is properly managed. If the parties are not (or not adequately) legally represented, there is no guarantee that this will occur, and the result can be incomplete or inappropriate orders, whether on a primary application, a variation, extension or withdrawal, or a cross-application’ (RCFV Report, Volume III, Chapter 16, p.178).

Mediation is not formally part of the process for negotiating FVIOs in Victoria, although it is in the ACT, the only such jurisdiction in Australia to use mediation formally.

The danger of any negotiation process used to determine the terms of FVIOs is that it is the very acts of family violence that are being discussed and negotiated, and that a poor process may result in a poor order with conditions that fail to protect the victim and her children.

Because so little is known about the process for negotiating consent orders for FVIOs in Victoria, the Royal Commission adopted a cautious approach and recommended that a committee be established within the next three years to investigate how consent-based family violence intervention orders are currently negotiated and to develop a safe, supported negotiation process for victims (Recommendation 77). On this issue, the parallels to family dispute resolution are clear.

Restorative Justice and Family Violence

Restorative justice is a process which was developed from the criminal justice system which enables all parties who have a stake in an offence to come together to discuss the aftermath of the offence and implications for the future. While restorative processes have a criminal provenance, which makes them distinct from DR processes such as mediation and conciliation, the processes share in common a commitment to party empowerment and a sense that creative solutions can be found through ‘talking it out’ which would not be possible in the formal legal system.

The Royal Commission noted that while the justice system plays a fundamental role in protecting victims’ safety and promoting perpetrator accountability, that many women find the reality of the court process to be deeply dissatisfying and even re-traumatising: ‘A strong theme that emerged from consultations held by the Commission was the need for victims to understand the options available to them, and the process involved, and to be empowered to make their own decisions about what steps and outcomes are appropriate’ (RCFV Report, Volume IV, Chapter 22, p.136).

Restorative justice programs have the potential to provide family violence victims with the chance to be heard, to explain to the perpetrator what the impact of the violence has been and to be empowered to discuss future needs, including any reparations. Such a process potentially places great power in the hands of the family violence victim.

However, the same concerns can be raised about the use of restorative justice in family violence cases as there are about the use of family mediation in cases of family violence. The concerns about use of restorative justice in this context include unequal power relationships between victims and perpetrators, concerns about safety, and concerns about the appeal to apology and forgiveness which are part of the cycle of abuse in family violence.

The Commission concluded that restorative justice processes have the potential to assist victims of family violence to recover from the impact of the abuse and to mitigate the limitations of the justice system (RCFV Report, Volume IV, Chapter 22, p.143). The Commission recommended that within two years a pilot program be developed for the delivery of restorative justice options for victims of family violence which would have victims at its centre, incorporate strong safeguards, be based on international best practice, and be delivered by appropriately skilled and qualified facilitators (Recommendation 122).

Common elements of diverse family violence dispute resolution contexts?

So, what are the common elements of diverse family violence dispute resolution contexts? It is worth considering commonalities between the processes so that we can understand the nature of the dispute resolution content and process. This will better enable us to understand what elements are needed for dispute resolution processes across these diverse contexts.

We see the common elements of the diverse family violence dispute resolution processes as follows:

Victim is part of dispute resolution process.

Across each of the three contexts, the victim of family violence will usually be part of the dispute resolution process. However, the victim may not be there in person (such as through resolution of disputes through ombudsman services, the dispute may be dealt with on the papers).

2. Perpetrator may or may not be part of dispute resolution process.

While the victims will be part of the process, the perpetrator may not always be there. For example, in debt disputes, the victim may be left with a debt and be unable to pay. The perpetrator may not be available or should not always be asked to explain or confirm his actions. However, in restorative justice conferences, the perpetrator may be there. In this case, safety issues must be paramount

3. Family violence may be hard to identify.

We know reporting levels of family violence are low. Matters in dispute may not initially present as a family violence matters. However, family violence may be central to matter, but extent of family violence may be hard to identify.

4. Family violence will affect how the victim will behave.

Victims of family violence are often vulnerable. The violence they have experienced will affect how they will behave in a legal or dispute resolution process.

5. Family violence is central to the nature of the dispute, the process and the outcome.

A “Safe and supported” mediation model

What then are the key elements of a safe and supported mediation process that could be used as the basis of new dispute resolution processes for cases involving family violence across a broad range of contexts? To develop these elements we draw from what we have learned in developing Coordinated Family Dispute Resolution in Australia from 2010.

We propose a “safe and supported” mediation model.

We have chosen to focus on a single dispute resolution process, mediation. Mediation is widely used. It offers flexibility and compromise between party empowerment and professional control of the process. Professional control of a process is central in cases of family violence where the risk of harm is great.

We believe that facilitative mediation is the best type of mediation in cases of family violence. A process like facilitative mediation carries with it the possibility of compromise between party autonomy and mediator control of the process necessary to provide a safe and supported negotiation process in the shadow of family violence. It also focuses on problem solving of the issue at hand, without attempting to remedy the relationship (as in transformative processes) which is arguably inappropriate in cases in family violence.

We believe that victim’s safety must always be the key priority in any dispute resolution process involving family violence. The victim’s safety must not be compromised because of her involvement in a legal process and the outcome of the negotiation must always be measured against the goal of ensuring safety for victims of family violence.

We focus on support because this is a key means of providing victims of family violence with the ability to participate in informal dispute resolution processes.

Elements of a “safe and supported” mediation process for matters involving family violence

Drawing from the CFDR model, the following are elements which we propose could be part of mediation processes involving family violence. These elements could apply across the full range of contexts mentioned above. It may be that some elements cannot be used in specific contexts. Nevertheless, dispute resolution processes for cases involving family violence should seek to implement as many of these elements as possible.

That issues of safety and risk are placed at the heart of decision-making.
The philosophy behind the dispute resolution process is that perpetrator accountability is a central objective of any mediation process that seeks to work effectively in contexts where there is a history of family violence.
It is central that the family violence itself is not negotiated.
A range of professionals must work together to achieve a safe process. It is critical that these diverse agencies and professionals share information and communicate effectively with each other.
Specialist risk assessments must be conducted only by qualified and experienced family violence and men’s workers.
A legally assisted, facilitative model of mediation should be employed.
There must be acknowledgement of the concept of a ‘predominant aggressor’ in the dispute resolution process. This is especially important where there are cross-allegations of violence against each party, which increases the risk that tactical allegations of family violence could be used to cover up for legitimate allegations.
Where perpetrators are involved in the dispute resolution process, the minimum expectation for participation in the model (and to receive its benefits such as free legal advice, counselling and other supports) is that perpetrators should have to acknowledge that family violence was an issue for their family, and that a family member believes that family violence is relevant to working out the future arrangements for the children.
There must be training for dispute resolution practitioners in the nature of family violence and family violence identification

We acknowledge this this post presents the first stage in our thinking about the use of dispute resolution processes for the management or resolution of disputes beyond family law and in contexts of family violence.

More specific work needs to be done to create context and organisation-specific models of mediation which acknowledge the existence of family violence in disputes and to adequately address the needs of the parties in light of family violence.

We think that the effort that has been put into working with clients around family violence in family dispute resolution holds important lessons for those in other dispute resolution contexts.

The elements of a “safe and supported” mediation model for matters involving family violence that we propose are an important starting point in a conversation about the safety and needs of victims of family violence in our society.

Please let us know your thoughts as we continue to develop our model.

Email contacts: Becky.Batagol@monash.edu; rfield@bond.edu.au

There is a time and place for mediation but a bullying allegation in the workplace is not one

Posted on 20/02/2017 by Associate Professor Becky Batagol

By Carmelene Greco

This post is the final in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University in 2016. 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.

Photo Credit: Dick Vos

The practice of mediation to resolve workplace bullying allegations is controversial and largely debated amongst academics. Ironically, effective resolution of such disputes is extremely important in our jurisdiction, with Australia having substantially higher rates of workplace bullying when compared to our international counterparts. This “hidden problem” requires a specialist and careful response but mediation is not it, and it may in fact make the situation worse.

Workplace bullying is notoriously difficult to define and there is still no nationally uniform definition. It has been described as “repeated, unreasonable behaviour directed towards a worker or group of workers, that creates a risk to health and safety”. It involves an addiction to controlling others, harassment and verbal abuse and constant unjustified criticism. It is not, as accurately stated by the Fair Work Commission, “reasonable management action that’s carried out in a reasonable way”.

Mediation, which aims to be an empowering process, involves trained third parties intervening on a dispute to assist parties to make their own decisions. As stated by the National Alternative Dispute Resolution Advisory Council:

The mediator has no advisory or determinative role…but may advise on or determine the process of mediation…

Therefore, any solution is not imposed on parties but arises out of the empowerment of the parties to make it themselves.

It is important to stress that there is a lot of evidence of mediation providing an effective outcome in many cases where it helps facilitates solutions to problems that appear unsolvable. However, the key distinguishing features of mediation, which make it an attractive option in many instances, are the very reasons it is inappropriate for workplace bullying.

Comparing workplace bullying and family violence

The very nature of workplace bullying automatically suggests that mediation is an unsuited response. Workplace bullying is frequently compared to domestic violence – they are considered “almost identical twins”. In both scenarios there is an addiction to power, the controlling of another in a detrimental way and a severe power imbalance.

Mediation, and other forms of ADR, can be considered inappropriate in cases of family violence. This is exemplified by current Australian family law legislation that affords an exception to the mandate of alternative dispute resolution where there is the presence of family violence. This displays the recognition by the Australian Parliament of how a severe power imbalance can undermine the benefits of mediation.

Similarly, in the case of workplace bullying, a power imbalance and a potential ongoing relationship exists, as such the effectiveness of mediation is reduced.

Consistently, shuttle mediation may also be an ineffective solution as it can exhaust parties into premature agreement, as well as not effectively ensuring the relationship of control has ceased.

Accordingly, on the basis that mediation is not appropriate for allegations of domestic violence, it is equally unsuitable for allegations of workplace bullying. It was argued by Hadyn Olsen that:

The practice of demanding mediation as the first response to any workplace grievance (including Workplace Bullying) places our society back in the same position it was in the 60’s and 70’s in regard to domestic violence. It is an entirely inappropriate response to this problem.

In conjunction with this dynamic is the fact that there are very few options available to the target of workplace bullying. It can be that the target has already resigned, intends to resign or is still employed and wishes to remain employed. The target is likely to be placed in a position of being wedged in a toxic working environment because of their financial needs and a lack of options for alternative employment. This again places the target of workplace bullying in a particularly vulnerable position, which is unique to this category of dispute.

The defining feature of workplace bullying allegations is the power imbalance between the bully and their target, which is exacerbated if the employer is also the bully. Mediation in such conditions is likely to reinforce the dynamic and worsen the situation, as it would in the domestic violence context already discussed. Meanwhile, reaching a constructive outcome jointly between parties is the hallmark of mediation – that is it involves a compromise and a desire to settle. A bully is unlikely to have this aim but instead view the mediation as an opportunity to further manipulate the target. Furthermore, the target is likely to be further disempowered and unlikely to reach a favourable outcome because of a lack of capacity to negotiate with the bully.

Hadyn Olsen noted that he has not met any target of workplace bullying who feels mediation was fair for them but argues that instead, in most cases targets feel further abused and damaged by the process. Similarly, a representative from Northern Territory Working Women’s Centre stated that:

The imbalance of power is so profound that she is just not able to speak freely… I think it would be unsafe and really inappropriate if it required the person who was being bullied to sit face to face with the person who was bullying her….

Bullying is not and cannot be a neutral agenda item

In a typical mediation, the issue to be considered is one that both parties are equally as affected by or equally contributed to. But in the context of workplace bullying, the agenda is entirely based on the inappropriate behaviour of the bully in the workplace.

A mediator may struggle to frame this issue as an agenda item and by referring to it as a ‘relationship’ the target of the bullying may interpret this to mean the mediator does not believe the bullying occurred. At the same time, a bully would view this as a reinforcing their lack of fault. Therefore, in workplace bullying allegations the person and the issue cannot be separated and trying to frame it otherwise can be detrimental.

Mediation fails to punish past behaviour

Mediation focuses on the present and future relationship between the parties and does not punish past behaviour. This is because it usually involves a mutually engaged in conflict. But workplace bullying is different. There is clearly one victim; one person who needs recognition of what has occurred in order to heal and move on. Dr Caponecchia stated that:

Mediation is more focused on not whether it happened or not but, ‘Let’s get back to work’, which may mean transferring someone.

Facilitators of workplace mediation argue that this is a benefit of mediation because it offers a fresh start and is about moving forward. However it is unlikely that targets of severe bullying will be looking for a fresh start and, instead, are more likely to want recognition and an apology. This is particularly the case where the target has decided to resign from their employment.

Public interest

It may also be in the public interest for matters of workplace bullying to go to court and not to be held in a private mediation. Mediation keeps any wrongdoing outside public scrutiny or knowledge. This is not a good thing because the knowledge of the prevalence of workplace bullying is significantly restricted, which in turn, reduces the likelihood of policy being developed in response. Because of the high levels of workplace bullying in Australia, full transparency is necessitated to establish an effective response.

But does this mean mediation can never be appropriate for workplace bullying?

It is arguable that a complete power balance between parties to a mediation is not the norm and hence it is always the role of the mediator to manage this relationship and minimise the impact of any imbalance.

Power imbalance can be managed by:

the use of support persons for each party (whether that be a family member or otherwise);
effectively communicating the rights of each parties and ensuring they are aware of these rights;
reality testing the options available to both parties;
representation by an advocate; and
informing the target that they have specific rights against the bullying – such as the ability to lodge a formal complaint.

If it is believed that the imbalance of power is not so severe that a mediator can effectively manage it, mediation may potentially be appropriate. However this is going to very much depend on the particular situation. It is likely that a mediator is going to be able to more effectively manage the power imbalance if intervention is early. Mediation is of no use where the target is now seeking full justice or retribution.

Consequently the suitability of mediation very much depends on the stage of escalation of the bullying. It is thought that mediation can be a helpful early intervention technique. The House of Representatives, Standing Committee on Education and Employment (2012), inquiry into workplace bullying found that several submissions supported mediation as an early intervention. It was stated in that report that:

Mediation cannot be the panacea to workplace bullying, rather, it is an effective early intervention tool and needs to be applied on a case-by-case basis.

Moira Jenkins also supported the use of it as an early intervention model stating that:

I do not think mediation is appropriate later on when you have very damaged people, but as an early intervention I think it is great.

We should begin with the assumption that mediation is an inappropriate way of dealing with workplace bullying. Where the bully is the employer, this position will not change. In such cases, arbitration provides a more appropriate dispute resolution option as it offers the opportunity for the past wrongdoings committed by the bully to be discussed and for them to be held to accountable. This is an important process for the victim in moving on and essential to facilitate a productive working environment by focusing on past behaviour, which mediation fails to do. In addition, arbitration allows somebody in power to define what is and isn’t bullying and to avoid allegations by the bully of hypersensitivity in the victim.

Alternatively, however, if it is identified that the bullying is at the very early stages of escalation and that a mediator is able to effectively manage the existing power imbalance, mediation may then be carefully conducted. If there is any doubt, it is in the best interest of the general public and of the target, that mediation is avoided as a means of managing allegations of workplace bullying.

A consequence of this protection of the victim of workplace bullying may be, unfortunately, that their access to justice is reduced to some extent. However, this is, in many circumstances, a necessary concession. Additionally, the availability of arbitration, which is not an overly expensive option for litigants, ensures that justice is not inaccessible.

Carmelene Greco completed a Law/Arts degree, with a major in journalism, at Monash University in 2016. She is now a graduate lawyer at King & Wood Mallesons and has a keen interest in exploring alternative dispute resolution prospects within the commercial law context.

Wishin’ and Hopin’: ADR Policy in Victoria

Posted on 16/12/2014 by Associate Professor Becky Batagol

The past couple of years have seen dispute resolution increasingly politicised in Australia, as we have explained elsewhere. The Victorian election, held on 29 November this year and which resulted in a change of government, is no exception.

The new Australian Labor Party (ALP) government has made an explicit commitment to increasing use of ADR in Victoria. The government’s pre-election platform states (at p 67-8):

Where disputes occur, Government should provide Victorians with options to resolve them at the earliest stage to avoid the cost, stress and delay that is often a feature of traditional court proceedings.

Specific policies promised in relation to ADR include increased promotion of mediation and ramping up the dispute resolution options at VCAT, the Victorian Civil and Administrative Tribunal, so that it is restored as “a simple, low cost jurisdiction that assists parties seeking speedy resolution of their matters in a less formal and intimidating environment.”

The government has also committed in its platform to providing increased access to justice for vulnerable Victorians (p.67). It has promised an inquiry into access to justice in Victoria including into availability and funding of Community Legal Centres (CLCs). Specific measures pledged to improve access to justice include increased funding for Victoria Legal Aid, addressing “the clogging of the court system”, fixing the problems with funding cuts at VCAT and encouraging more lawyers to work at Community Legal Centres through providing incentives such as scholarships and HECS rebates.

Related promises in the ALP platform include mainstreaming into the broader court system some of the successes of the problem-oriented courts set up in Victoria over the past decade (p.64) so that offenders are better connected to the services they need to address their offending.

While the previous government was in power Victoria from 2010-14, ADR policy moved slowly at best. The Attorney-General for that government, Robert Clark, had publicly expressed his commitment to ADR, stating to the LEADR Kongress in September last year: “The State government is a strong supporter of ADR and the role it can play in bringing about just outcomes in a timely and cost-effective manner.” However the record of the coalition government supporting ADR did not match these words when, in 2011, it repealed legislation containing broad-scale pre-action procedures mandating participation in ADR for all civil disputes before the courts. In passing these reforms, the Attorney-General stated in Hansard on 10 Feb 2011 (at p 307):

It is common sense and good practice for parties to attempt to resolve their dispute without resorting to litigation if there is a reasonable prospect of success in such an attempt. However, the government’s view, and the view of many practitioners, is that to seek to compel parties to do so through these heavy-handed provisions will simply add to the complexity, expense and delay of bringing legal proceedings, because of the need to comply with these mandatory requirements, whether or not they are likely to be useful in any particular case.

It is regrettable that the legislation was repealed without any evidence base of the effectiveness of the reforms or independent testing of the Attorney’s claims.

It remains to be seen whether the deeds of this new Victorian government match its words. The fact that ADR and access to justice were explicitly part of the policy platform prior to the election is promising. The new Attorney-General, Martin Pakula, has big shoes to fill, his Labor predecessor being Australia’s most reformist AG, Rob Hulls (Lionel Murphy having fewer years in the job).

While we wait to know more from the government in Victoria, here’s my personal wish-list for the Attorney-General to tackle in relation to dispute resolution/ ADR policy reform in Victoria

A public review of the quality and effectiveness of ADR processes in Victoria. ADR is offered in every Victorian court and by many other state providers. But we know little about the quality of services offered (including settlement rates, satisfaction, inter-professional collaboration around the process and the fairness of outcomes). The Productivity Commission recently called for all State and Territory governments to conduct an independent public review of the effectiveness and efficiency of dispute resolution mechanisms within their jurisdiction every 5 years, starting by 30 June 2016 (p.298). Such a review would be a good start for a government intent on making an impact where there is already significant state outlay on ADR services and efficient justice investment is an imperative.
Mandating public reporting on standard ADR data by all Victorian ADR service providers (including courts and tribunals, Community Legal Centres, Victoria Legal Aid and other dispute resolution services such as the Dispute Settlement Centre of Victoria, or DSCV). Higher quality and consistent data collection would enable us to understand whether existing ADR services meet their aims and whether gaps in service provision exist. Higher quality data means that money can be efficiently allocated where there is highest need. The public availability of such data is crucial to ensure transparency in provision of dispute resolution services when ADR lacks the many of the fairness protections available in the public court system. The absence of adequate dispute resolution data was noted by the Victorian Law Reform Commission (VLRC) in its 2008 report on Victoria’s civil justice system in relation to the effectiveness of court-ordered mediation in Victoria (at pp 278-83). In 2009, when the Victorian Parliament’s Law Reform Committee recommended that

At a minimum, the Committee believes that there is a need for consistent data collection across ADR service providers about:

-settlement rates

-factors that may influence settlement rates, such as referral stage

-what happens when disputes are not settled at ADR

-participant satisfaction with ADR and perceptions of fairness the time and costs expended by participants and service providers. (pp. 58–59)
Widespread use of family group conferences for child protection matters usually commenced in the Children’s Court of Victoria. In 2010, just prior to the State election in that year, the Victorian Law Reform Commission set out a range of options for reform of the processes followed in child protection cases in the Children’s Court of Victoria. One of the options canvassed involved a graduated range of supported, structured
and child-centred agreement-making processes as the principal means of determining child protection application outcomes instead of existing court processes. The Commission noted that most agreements in child protection matters are already the result of informal bargaining between the parties’ lawyers (at para 7.4) and that supported and child-centered processes such as family group conferences would better enable agreements that are in the best interests of the children involved and which stick in the longer term. These options for reform were never implemented following the 2010 election and may yet help to ensure that scarce resources already invested in Victoria’s child protection system are directed towards assisting vulnerable children have care arrangements that meet their best interests.
Better connecting and integrating state-funded family violence and police services with federally-funded Family Dispute Resolution (FDR) services so as to better protect those experiencing family violence. In 2010 the Australian and NSW Law Reform Commissions’ joint inquiry into family violence concluded that there was potential for FDR to expeditiously and effectively resolve parenting disputes in cases involving family violence but that there had to be better coordination with State and Territory child protection and family violence systems (at paras 21.12-21.13 and 21.50). The Luke Batty case has clearly demonstrated the need for more effective coordination of state-based family violence and police services and services within the federal family law system. The Victorian government has committed to holding a royal commission into family violence. By committing to work specifically with FDR providers including Family Relationship Centres and Victoria Legal Aid’s Roundtable Dispute Resolution, the Victorian government can help to provide avenues for seamless, safe and supported decision-making following family breakdown for women and children experiencing family violence.

So, that’s my list. What is on your personal wish-list for ADR policy reform in your State or locality?

Becky Batagol would like to disclose that she worked for the Victorian Law Reform Commission on its inquiry into Protection Applications in the Children’s Court of Victoria in 2010.