Good practice guidance responding to cultural

difference in family mediation

National Mediation Conference Dr Susan Armstrong, UWS

Melbourne, 18 September 2014

Acknowledging country

I pay respect to the Wurundjeri people of

the Kulin nation on whose beautiful land

we gather;

To their elders: past, present and future;

And to any Aboriginal people here today.

2

Why respond to culture in DR? FDR?

• Facilitate normative values/ethics of mediation

– Support party self-determination

– Address dilemmas of neutrality

• Divorce & separation heighten salience of cultural & religious norms & relational bonds

• Help parents promote child’s best interests, & child’s right to enjoy culture s63DA, s60C(2)(e) FLA

– Importance cultural identity to child’s psychological, emotional & social development.

3

FDR context

• Capacity party self-determination may be limited:

– Complex client profile: violence, mental health, D&A, literacy, linguistic, cultural and religious complexity.

– Time limited, mandated FDR (child protection).

– Prescriptive legislative frameworks: query voluntariness & informed consent.

– Children’s best interest focus.

– Clients’ normative framework & commitment to relational networks.

• FDR professionals’ lack confidence re culture. 4

Good practice?

• Contextual ethical approach (Field, 2011; Crowe, 2014)

– situational, relational, guidelines not rules

• ‘dialogue across difference’ with ‘respectful scrutiny’ (Brigg, 2009)

– ethical process of inquiry and exchange about values and beliefs important to people concerned

– ‘informed not-knowing’: client is expert (Laird, 1998)

• Responsive and reflexive (Armstrong, 2011a)

– Neither overvalue nor undervalue culture

5

Good practice 1: Context

• Cultural assumptions in mediation & Family Law? – ‘normal, universal and thereby rendered invisible’ Brigg 2003

– Western views of conflict and selfhood

– Normative parenting Family Law Act

• How do organisational behaviour, attitudes and policies support cultural responsiveness? Cross, 1989;

NHMRC, 2005; Armstrong 2010

– Eg is culture and/or religion identified, explored?

– How are communities engaged in planning services?

• How can participating lawyers be supported to be culturally responsive?

6

Good practice 2: FDRP

• Self awareness & cultural auditing (Collins, 2010)

– What do I know about this pertson & her or his culture? What assumptions am I making?

– What aspects of my own beliefs, values or previous experience might challenge my work with this person?

• Role? Objectives? Culturally inscribed? – Neutral? Impartial? Support party self-determination?

– Mediator activism & informed consent? (Weckstein, 1997)

– Role concerning children’s best interests? (Rhoades, 2008)

• Culture an extra layer of complexity or integral?

7

Good Practice 3: Assessment

• Who should conduct assessment?

• How is culture / religion relevant in this matter? – How are disputes resolved in family context?

– Listen for cultural cues in client’s narrative: explore

– Discuss what best interests might mean in parents’ cultural contexts FCA, 2007

• Language? Interpreter? Support personnel? (FLC, 2012)

• How might parties’ cultural context influence: – Norms about self disclosure, conflict, emotion?

– Knowledge of family law, cultural laws & norms divorce?

– Understandings DV, willingness disclose? (Lord, 2011; FLC, 2012)

8

Good Practice 3: Assessment

• Who are the parties ‘in-relation’ to networks?

• Family interested 3rd party?

• Extended family/networks involved in FDR?

• Who in child’s network?

• Normative family structures?

• Family networks and normative values influence capacity to negotiate & durability of decisions?

9

Good Practice 4: Preparation – parties

• What are parties’ cultural expectations about FDR?

– role and status of 3rd party, formality, time frames, ground rules, location, face to face, understandings of fairness, equality, closure? LeBaron, 1997

• How might parties be prepared to participate?

– ‘learning how to negotiate in a way that makes real self-determination possible’ (Field, 2010, 192; Kaspiew (CFDR), 2012)

• CFDR: Learn about process, ground rules, active listening, effective communication, negotiation skills, identify options

• What role (cultural) support personnel? Lawyers? 10

Good Practice 5: Preparation: FDRP / organisation

• Who should conduct FDR?

– ‘understands the needs, language, cultural themes, dynamics [and] nuances’ (Taylor, 1991; Shah Kazemi, 2000)

– What are party preferences? Co-mediate? Gender?

• Who should interpret? How prepared? (FLC 2012)

• Guidelines participation? Seating? Location?

• What settings will respect parties’ worldview?

• What timeframes are appropriate?

11

Good practice 6: Opening

• FDRP language – avoid jargon FLC, 2012

• How might parties be helped to hear and understand each other?

• FDRP aware of cultural behavioural norms? Shah Kazemi, 2000

– whether expression of conflict or confrontation is tolerated, role of non-verbal communication?

• What might be culturally appropriate ground rules? – mediators in room with client of opposite sex caucus? – ask each party to translate ‘respect’ into observable

behaviour Stringer, 2001

12

Good practice 7: Exploration

• How have parties’ normative framework and cultural identity shaped the dispute? Options? – Is culture deployed in the dispute?

• How might parties be coached to facilitate communication? – ‘Coaching each party as they talk with each other,

without embarrassment or loss of face.’ Stringer, 2001

• What educative role should the FDRP play? – Advise children’s best interests, right to enjoy culture

– Assist genuine effort: consider and put options Astor 2008

13

Good practice 8: Negotiation

• How might parties be supported to negotiate effectively and to make informed choices? – Effect on choices of parties’ normative framework, socio-

economic, dynamics of gender in context marriage

– What is reasonable in cultural context?

• Challenge cultural constructions not best interests?

• What opportunity do parties need to consider rationale, benefits, drawbacks of options? – How might family networks view options?

– Child maintain cultural connections?

14

Good practice 9: Agreement

• Resolution may be obstructed by ‘obdurate issues’ – often concerning parties’ identities, ‘social reputation, morality, status’ Shah Kazemi, 2000

– Need to be familiar with prevailing cultural norms to be agent of reality in reaching agreement

• How might any (cultural) impasse be bridged? When appropriate to withdraw? Abramson, 2006

• Will family/cultural networks support outcome?

• Cultural rituals to seal agreement? 15

Good practice 10: Post FDR

• What support might parties need communicating outcome to family/cultural networks or implementing agreement?

– Reconciling with family/networks? (Shah Kazemi, 2001)

• What follow up is appropriate? When? How?

16

Sustaining Good Practice

• How might culturally responsive practice be sustained and made integral to FDR practice? – Embed regular, structured, service-specific

collaborative learning: ‘conversations about culture’

– Enhance capacity across organisation to recognise, explore and respond to culture (& religion) in FDR

– Work with CALD & faith communities , services & leaders to identify what would support their members

– Develop cultural liaison roles?

– Train FDRPs from culturally diverse backgrounds?

17

Barriers to Good Practice

• Resources

• Time & complexity: – ‘additional time required to negotiate cultural and

language differences can be prohibitive’ Kaspiew, DFDR, 2012, 36 • Legislative frameworks

• Loss of key individuals, leadership

• Multiple professional contexts

• Lack of clarity about objectives

18

Implications

• CFDR ‘Empowered parents to make appropriate arrangements for children, steps toward self-management’ Kaspiew et al, 2012

– Potential for application to CALD communities? (p 36) – More intensive deployment of resources - ‘prohibitive’?

• Good practice guides culturally responsive FDR FLC, 2012

• Support information-sharing about successful practice • Develop protocols eg inclusion extended family/support • Training FDRPs from diverse backgrounds & evaluation • Culture in Mediator Standards and FDRP training • Culturally (& religiously) responsive training & practices • Work collaboratively with existing community DR • Research: voice parties? Children? other DR models?

19

Bibliography

• Abramson, Harold, Selecting Mediators And Representing Clients In Cross-cultural Disputes, (2006) 7 Cardozo Journal of Conflict Resolution 253

• Armstrong, Susan (2010a) Culturally responsive family dispute resolution in Family Relationship Centres: Access and practice. Sydney: CatholicCare and Anglicare.

• Armstrong, Susan,(2010b) Enhancing Access to Family Dispute Resolution for Families from Culturally and Linguistically Diverse Backgrounds, Australian Family Relationships Clearinghouse Briefing No 18, 1-23.

• Armstrong S (2011a) Developing culturally reflexive practice in family dispute resolution, 22 Australasian Dispute Resolution Journal 30-40

• Armstrong, Susan (2011b) Encouraging conversations about culture: supporting culturally responsive family dispute resolution, Journal of Family Studies, 17(3), 233-248.

• Astor, Hilary, (2008) Making a 'genuine effort' in family dispute resolution: What does it mean? 22 Australian Journal of Family Law 102

• Avruch, Kevin (1998) Culture and Conflict Resolution, Washington: United States Institute of Peace Press.

• Barsky, Alan, (1998) Cross-Cultural Issues in Community Mediation, Bar Ilan University Conference on Mediation and Negotiation, Ramat Gan, Israel.

• Balvin, Nikola, Lola Akin Ojelabi, Tom Fisher, Helen Cleak, Alikki Vernon, (2010) Evaluation Of The Family Relationship Centre Broadmeadows, La Trobe University For Mackillop Family Services

• Brigg, Morgan, (2003) Mediation, Power, and Cultural Difference, 20 Conflict Resolution Quarterly 287.

• Brigg Mogan, (2009) The New Politics of Conflict Resolution: Responding to Difference (Palgrave Macmillan)

• Collin, Sandra, et al, The collective dimension of reflective practice: the how and why. (2011) 12 Reflective Practice, 569.

• Cross, T., et al. (1989) Towards a Culturally competent system of care: a monograph for effective services for minority children who are severely emotionally disturbed. Georgetown University Child Development Centre, Washington.

20

• Crowe, Jonathan (2014) Ethics and the Mediation Community (draft)

• Docherty, Jayne, (2003) Culture And Negotiation: Symmetrical Anthropology For Negotiators, 87 Marqettte Law Review 711

• Family Court of Australia (FCA), (2008) Families and the law in Australia: The Family Court working together with new and emerging communities Commonwealth of Australia, Canberra.

• Field, Rachael, (2010) FDR and victims of family violence: Ensuring a safe process and outcomes 21 Australasian Journal of Dispute Resolution 185

• Field, Rachael (2011) Rethinking mediation ethics: A contextual method to support party self-determination

• Family Law Council, (2012) Improving The Family Law System for Clients from Culturally and Linguistically Diverse Backgrounds, Canberra

• Furlong, M., & Wight, J. (2011) Promoting “critical awareness” and critiquing “cultural competence”: Towards disrupting received professional knowledges. Australian Social Work, 64(1) 38-54

• Kaspiew, Rae, et al, (2012) Evaluation of a pilot of legally assisted and supported family dispute resolution in family violence cases: Final report, AIFS

• Laird, J. (1998). Theorizing culture. In M. McGoldrick (Ed.), Re-visioning family therapy: Race, culture, gender in clinical practice . New York: Guilford

• Michelle LeBaron, (1997) Intercultural Disputes: Mediation, conflict resolution, and multicultural reality: culturally competent practice, Edward Kruk (ed) Mediation and Conflict Resolution in Social Work and Human Services Nelson Hall publishers, Chicago.

• Lederach, John Paul, (1996) Preparing for Peace: Conflict Transformation Across Cultures, Syracuse University Press, Syracuse.

• Merry, Sally Engle, (1986) Disputing Without Culture 100 Harvard Law Review 2057

21

• Morgan, Anthony, et al, (2012) Evaluation of alternative, dispute resolution initiatives in the care and protection jurisdiction of the NSW Children’s Court, Australian Institute of Criminology, Canberra.

• National Health and Medical Research Council, Cultural Competency in Health: A guide for policy, partnerships and participation (2005) Commonwealth of Australia, Canberra.

• Rhoades, Helen, et al, (2008) Enhancing Inter-professional Relationships in a Changing Family Law System: Final Report University of Melbourne, Melbourne.

• Shah-Kazemi, Sonia, (2000) Cross Cultural Mediation: A Critical Review of the Dynamics of Culture in Family Mediation 14 International Journal of Law Family and Policy 302.

• Shah Kazemi, Sonia Nurin (2001) Untying the Knot: Muslim Women, Divorce and the Shariah (Nuffield Foundation, The Signal Press)

• Stalford, Helen, (2010) Crossing boundaries: reconciling law, culture and values in international family mediation 32 Journal of Social Welfare and Family Law 155

• Stringer, Donna, & Lonnie Lusardo, (2001) Bridging Cultural Gaps In Mediation 56 Dispute Resolution Journal 29

• Taylor, Alison and Sanchez, (1991) Out of the White Box: Adapting Mediation to the Needs of Hispanic and Other Minorities within American Society 29 Family and Conciliation Courts Review 104

• Walker, Polly (1999) Concepts of the self: implications for cross-cultural conflict resolution 2(2) ADR Bulletin

• Weckstein, Donald (1997) In Praise of Party Empowerment – And of Mediator Activism 33 Willamette Law Review 501

• Women’s Legal Services NSW, A Long Way to Equal, An update of ‘Quarter Way to Equal: A report on barriers to access to legal services for migrant women’ (2007, Sydney)

22