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

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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.

What’s in a frame? Power, control and desire in the experience of family mediation.

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We bring our readers another blog post, written by Assoc Prof Jill Howieson. The post is version of paper presented at the just concluded ADR Research Network Roundtable, 4 -5- December 2017 #ADRRN2017. Happy reading!

“By the tragic gap I mean the gap between the hard realities around us and what we know is possible — not because we wish it were so, but because we’ve seen it with our own eyes.” —Parker J. Palmer

In 2011, I wrote on the Kluwer Mediation blog. I wrote about the same transcripts from the family mediations that I have analysed for this paper. In 2011, I wrote that I was reading about desire in these transcripts. I had returned to my 1985 language, literature and culture textbook, Modern Literary Theory, and to psychoanalytic and linguistic theories to try to understand what I was reading.

I was drawn particularly to Lacan and Foucault, and their analysis of language. A few years on and Parker J Palmer captivates me with his notion of the tragic gap –“the gap between the hard realities around us and what we know is possible.

Now these concepts converge. Jacques Lacan’s lack, or the “endless chain of signifiers” that we use in pursuit of a ‘real’ satisfaction or desire; Michel Foucault’s recognisable objects (or hierarchies) of importance, and the practices that derive from them that we create to uphold power; and Parker J Palmer’s tension gap, where we “faithfully hold the tension between reality and possibility.” These are all concepts that can inform our understandings about mediation.

Firstly, I wondered if we as mediators do not ‘faithfully hold the tension’; namely, the tension between what parties say they want and what they desire. The present analyses of the transcripts suggests that mediators can create tight frames for their mediation discourses and thereby impose a control on the parties’ language, and thus on their needs and desires – or at least their acknowledgement of their needs and desires.

The Foucauldian analysis alerted us to the power that mediators can create through their language. It showed that a mediator’s language could create recognisable objects or hierarchies of importance, which has the effect of elevating these objects and giving them power. The mediators in the study were able to elevate the status of various ‘objects’ including the notion of ‘good parents’ who will compromise and come to agreements, and parents who displayed calm rational ways of disputing or negotiating through their choice of words. By elevating these objects, the mediators could control the practices that flowed from them. For instance, where the mediators accorded importance to the notion of ‘good parents’ and excluded ‘naughty parents’ from the discourse, this empowered the mediators to push the ‘naughty parents’ into attending child-focussed sessions.

Further, with their language, the mediators seemed to create frameworks for the mediation that would cause the parties to work within those discoursal frames.  Through a repetition of Court-focused words, the mediators created court-focused frames, which had the effect of creating fear in the parties and empowered the mediators to push for agreement (to keep the parties out of court).  The parties would follow the mediator’s language and tailor their conversation to suit regardless of whether this was where they wanted to go or not. For instance, a discoursal frame of court had the result of moving the parties towards plans and agreements, and took them away from their ‘real’ fears and desires.

Further, the results revealed that mediators would listen according to their mediation orientation. If mediators worked within a settlement orientated frame, then they would listen for agreements or signals that might lead to agreements and use interventions to suit, such as writing options on the whiteboard and recording agreements.  On the other hand, mediators working within a ‘best interests of the child’ framework would listen for examples about the child’s perspective and how the children might be experiencing the separation, and then choose child-focussed interventions to encourage the parents to think of themselves as parents rather than as disputants.

Essentially, it seemed that despite their best intentions, the mediators would often miss the real desires of the parties and/or ignore the power discourse that they were creating as they pushed towards certain outcomes rather than sitting in the process tension of possibility.

According to Lacan, needs, if left unattended (or are reframed), do not disappear but turn into desire. In 2011, I asked what language in mediation do we have to address the parties’ unmet needs and desires. Now, I ask, how do we even hear these desires and needs when we mask them so well with our own desires for outcomes?

If we want to hear the desires of the parties (and I am not saying that all mediators do) then we need to begin to listen differently. We need to listen for the structures of desire in mediation that tell us what it is that the parties crave. We need to sit in the process-outcome tension and listen to the repetitions; the patterns and the experience of the parties so that they can access their true selves and their true desires, and then tell us what these are if they need to.

The Lacanian analysis revealed that the parties would often repeat words or patterns of words that would give ideas about their desires:

  • their attachment desires (I haven’t found someone worth living with and having my children involved with; I don’t live with somebody that helps me share my rent, helps me share my bills).
  • desire to be a good parent or better person (But that will change in the next … probably ten weeks…that will change), or
  • a desire to give the children what they perceived they needed (I’ve always said to M and to a mediator that assessed me …They’re four boys. They need their dad).

 

These examples of repetition occurred within conversations about which school the children would go to and who would pay for the children’s after-school sport activities—they were not so easily identifiable as desires.

So, what do parties say as they seek attachment to calm their unattached selves, or calmness to keep their selves intact in the chaos of conflict? What hidden desires does their language conceal? In the transcripts, there were prolonged, sometimes nonsensical discussions about the location, denomination and even the principal of the children’s schools—signifiers perhaps? There were discussions about the children’s dental plan or child payments —masquerading as desires for closure and the ‘gestalt’ perhaps?

We can never really know, but we can guess. We can sit in the tension gap of the unfolding of meanings and the ongoing and reflexive nature of mediation. The research shows that mediators tend to focus on the agreements more so than the parties do. The parties’ conversations tended more towards an articulation of what they were experiencing rather than towards concrete agreements.  We could look at the relationship between language, outcomes and experience more closely.  As Parker J Palmer writes, tension in life is ‘inevitable, inexorable, [and] inescapable’.  We could use this tension and assist the parties to make meaning out of their situations, actions and desires; to move from the jumble of conflict – the chaos – to the destination of desire, or at least understanding their desire; to make meaning in the disorganised realm, whether of experience or thought, and sort this out into an understanding of needs.

But, what mediation language do we use? What do we use as signifiers? And what desire is repressed as we substitute our language of desire for the language of courts, or child development or parties’ needs?

In 2011, I wondered whether, in every mediation, we were selling ourselves short. I wondered whether, with our future focus, our discourse of agreement, as we shape and mould, whether we were trying to camouflage that which is continually trying to show itself – our gaps, our cracks, our ugliness, our humanity, our beauty, our desires! I think in 2017, the answer might be a resounding yes.

 

 

 

 

Nearly Neutral: A Mediator’s Best Bet

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By Amanda Selvarajah

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

 

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‘The Gate’ by  Guillaume Delebarre: Creative commons source

The National Mediator Accreditation System removed “neutrality” as a requirement on their list of ethical standards in 2015. This may suggest a trend away from the truly “neutral” mediator in the sense of a ‘detached third-party’. But does this mean we are to rule out neutrality entirely as an ethical consideration in mediation? With a trend of increasingly interventionist mediators, a complete disregard of the concept could place participants at great risk of being subjected to ethically dubious decisions.

     Perhaps the reason for the mediation community’s shift from neutrality is not because of a flaw in neutrality itself, but rather a failure to grasp a version of neutrality that can and should be an important element of an ethical mediation. Instead of defining neutrality as an unattainable attribute intrinsic in the nature of a mediator, perhaps we should be viewing neutrality as a constant practical endeavour throughout the mediation process, a mediator who’s nearly neutral.

Why Neutral At All?

A mediator in its simplest description is a ‘trained, impartial third party’ who assists parties in making their own decisions. However, mediation remains unregulated and virtually unmonitored as it is typically conducted in private with assurances of confidentiality. Mediated parties are expected to relinquish a guarantee of the principles of justice and fairness that would be inescapable in a common law court. It is these qualities of mediation that leave participants particularly vulnerable to a biased decision in the event of a potentially opinionated, interventionist mediator. Therefore, it is the consensual participation in the process and the assurance of “neutrality” that many consider the source of the process’s legitimacy.

On the spectrum of mediator involvement in mediation, the facilitative approach, which focuses a mediator’s role to procedural stages, leaves parties with as much freedom and control in the substance and outcome of the mediation as possible. The evaluative approach, on the other hand, has even been disregarded by some, like the Victorian Association for Dispute Resolution, as being a form of mediation at all. They argued that the mediator’s ‘input into the content, and sometimes the outcome’ of the mediation made the process inherently contrary to the core principles of mediation.

Such or any mediator involvement may suggest, as critics of the evaluative mediation approach do, an immediate breach of neutrality. But this is only the case if neutrality is restricted to a ‘strict, dualistic sense of the mediator either being or not being neutral.’

Why Not Be Absolutely Neutral?

To truly make the case for a re-imagined concept of neutrality, one must first accept the bold suggestion that mediations are not neutral in its literal sense and could likely never be so. Mental health professionals have found that ‘there is no such thing as total impartiality, neutrality, or lack of bias when working with people, even though as practitioners they may strive for such ideals.’ In mediation specifically, research has shown that in practice, mediators may affect and influence mediation at almost all stages of the process. Examples include ‘the ways they structure the interchange between the parties, in terms of the sequencing of storytelling and the framing of responses and what needs to be responded to.’ It follows then that any assessment of a mediator’s success in reference to their ability to be neutral, in the literal sense of the word, would set almost all our mediators up for failure.

However, regardless of a mediator’s ability to be neutral, there is the added consideration that absolute neutrality may not even be conducive to the goals of a truly successful mediation. For example, in the case of the simultaneous expectations that a mediator be both absolutely neutral but also committed to facilitating an equal conversation, one often comes at the cost of the other.

Mediated parties often experience a power imbalance. Therefore, a hands-off mediator may in these cases fail to protect ‘vulnerable parties from inappropriate pressure’. In family law mediation (family dispute resolution or FDR), for example, parties often meet at very unequal terms. Mediators in these cases may be caught between either claiming a position of absolute neutrality, thereby stripping them of the power to ‘redress imbalances’, or recognising a role in sometimes having to take ‘affirmative action… to achieve a balanced agreement.’

Family dispute resolution practitioners must consider if ‘family dispute resolution is appropriate’ before mediation is undergone. This may allow for vulnerable parties to be excluded from the mediation process, sparing mediators the struggle of balancing these competing expectations. But some victims still ‘feel that FDR processes fail to identify and manage the risk of family violence effectively.’ The exclusion also does nothing for parties beyond family abuse dynamics who may still be more vulnerable than the other party due to cultural, societal or financial factors.

This concept of absolute neutrality is similarly challenging for indigenous mediators, to whom Western notions of neutrality may not make sense. In indigenous mediation it has been recommended that a respected elder would likely be the more appropriate choice of mediator than a neutral third-party. Selecting a mediator for their ability to intimately understand the parties as opposed to their ability to detach themselves from them is arguably in direct opposition to Western expectations of a successful mediator. A commonality in our understandings of a successful mediation, however, may be the increasing interest in addressing the conflict at the heart of mediations.

Therapeutic jurisprudence, a philosophy focused on critically viewing our legal systems to maximise the health and wellbeing of those who engage with it, has been applied to improve and direct law reform throughout Australia’s legal system. Critically assessing the purely facilitative mediation process through a therapeutic jurisprudence lens unearths the potentially anti-therapeutic effects of having a non-interventional, solution-centric mediator who as a result, fails to address and redress the underlying tensions at the heart of parties’ relationships. The development of therapeutic jurisprudence throughout Australia is proof that the indigenous community’s focus on rebuilding and strengthening relationships is not unique and could be facilitated in mediations with a more involved mediator.

A New, Nearly Neutral Approach

Neutrality was seen as a cornerstone of mediation’s procedural fairness, the idea that ‘what is required by procedural fairness is a fair hearing, not a fair outcome’. The facilitative approach has, therefore, been described as having the highest regard for procedural fairness on the basis of perhaps a rather simplistic equating of a fair hearing with a decision-maker who allows parties to make their own case with as little intervention as possible.

This argument assumes, however, that participants of mediation are always equally capable of articulating and pursuing their own interests and that they are always more concerned with a practical outcome than a resolution of the underlying feelings and conflict which brought on the mediation in the first place.

However, research has shown that in mediation ‘the basis of authoritativeness (e.g. of the ability to gain voluntary acceptance from members of the public) is changing from neutrality-based to trust-based.’ This suggests that contrary to advocates for neutral mediators, parties may actually prefer a more interventionist mediator who is willing to foster openness and build a relationship of trust over a detached one.

So perhaps instead of aligning neutrality with a mediator who never intervenes, it would be best to hold mediators’ interventions to standards ‘of non-partisan fairness or impartiality’ instead. For example, weighing, as an objective third-party, whether an intervention would make sense to ‘facilitate a productive dialogue by encouraging or even coaching reticent or inarticulate parties’ to promote a generally more just proceeding. After all, in the immortal words of Theodore Roosevelt, ‘Impartial justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.’

 

Amanda Selvarajah is (@amanda_darshini) currently in her third year of the Bachelor of Law (Honours) program at Monash University. Her research has focused on questioning the limits of the law and its rooms for improvement across a variety of fields. Last year, her research into the abuse of forensic evidence in court was selected for presentation at the International Conference of Undergraduate Research.

 

Dispute Resolution, in Person, for Real

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So, I’m excited!

Along with 13 other members of the ADR Research Network, we have been meeting in the glorious sunshine at Queensland University of Technology’s Garden Point Campus this week. Meeting for real, in person. With coffee in hand and fuelled by victuals kindly provided by QUT law school, we have be discussing the most difficult aspects of dispute resolution theory and practice.

The ADR Research Network was founded in 2012 by a group of dispute resolution academics from across Australia. We live and work in the far corners of this big country, from Hobart to Townsville, from the Gold Coast to Bundoora. Some of us are mediators, some lawyers, some legal philosophers, educators and we all live and breathe dispute resolution. We had all met at conferences before and read each others’ work over the years and a few of us have even written together. But we wanted to do more than just see each other occasionally and referee each others’ work: we wanted to engage with each other on what we are working on, we wanted to debate the hard stuff, we wanted to share a laugh.

As well as running this blog, we have decided to write a book together, based around the theme of changing professional identities for both lawyers and mediators in dispute resolution. The increased use of ADR and institutionalisation of processes such as mediation challenge us to rethink the role of lawyers and mediators in dispute resolution. Questions arise such as is mediation now a profession? Is there a single mediation community or are there multiple communities of mediation practice? How do we train lawyers to achieve justice in mediation? What is the basis of an ethical decision making process for mediators? How best do we define mediation and is that important? Should neuroscience affect mediator practice?

The most exciting thing about our book project is that it is so collaborative in nature. Each chapter will be written by a single author but with extensive feedback from the group as a whole and from individual authors. This will create a highly reflective and tightly structured collection that we hope will be central to understanding contemporary dispute resolution practice.

We are still writing and putting together a book proposal. To give you a sense of what we are all writing about, here’s a way to see the tweets we have made over the past few days at the workshop. We have been using the hashtag #adrresearchnetwork. These tweets summarise the ideas raised by each author in our chapters and some of our thoughts around the table as a group.

Stay tuned …