Highlights from Day 2 of the National Mediation Conference

Strategies for legally assisted culturally appropriate FDR

More complex families experiencing trauma are accessing FDR. This presents significant challenges for the FDRP that require us to move in new directions and work in different ways.

There are significant barriers for these families including:

  • Lack of trust
  • Fear eg of the children being removed
  • Lack of understanding of how FDR works and what the benefits might be for them
  • Favouring reconciliation over separation with all the risks that may be associated with this
  • Language
  • Feelings of shame, such as that the issues should be resolved within the community

One suggestion of how the process might be optimized for these clients is:

  1. community engagement
  2. intake with all relevant supports and stake holders involved
  3. case collaboration of all relevant workers and supports both within the process and outside
  4. readiness and preparation enhanced by comprehensive information sessions
  5. family and community consultation
  6. family focused mediation
  7. post mediation support

This way of working is a child centred, trauma informed, facilitative mediation approach with a culturally responsive framework. Lawyers would be present throughout each stage of the process to ensure that they understand all parts of the journey and are available and able to support the client whenever required.

Intersection between Family Violence and FDR by Judge Jo Harman

The question for Judge Harman is –Would interference with FDR privilege affect participation and provide better outcomes? In other words, would it make any difference to FDR or court, if the process of FDR was not confidential?

The judge collected data from all matters going through his list over a period of time and extracted the resulting conclusions.

The Judge pointed out that overall 90 % of matters are sorted out without any intervention. Of the remainder, 7 % go to FDR and 3 % to court. 80 % o all cases have an element of family violence.

If the first disclosure of FV is in FDR, then the confidentiality of the process may impact on evidence gathering for the court process. However his conclusions when examining the statistics shows that there is in effect only about 3 % of matters overall where FDR is attempts where there are allegations of FV. By contrast ,where FV is not alleged about 72% overall attended FDR. His mantra is that the more significant the FV the less likely it is that the parties will attend FDR.

The statistics also showed that 97 % of that involved with FV had been to at least one support service including therapists, school counselors, medical practitioners, police or child protection. 43 % of victims and children had attended between 5 and 7 of these supports and professionals.

His conclusion is that interfering with the confidentiality of FDR will make little difference as in less than 1 % this would produce evidence that would not be otherwise available.

Mediating inter-parental hate after parental separation

The question asked was-does hatred have a role in understanding enduring conflict?

The speakers Laurie Maloney and Bruce Smyth proposed that this group is not accurately considered by representing them as the far end of the spectrum, but they are a separate subgroup that challenge the limits of psychological knowledge. Their circumstances trigger a thought disorder that involves children and other adults in their delusional thinking. The children in these situations remain at high risk.

Safety must be the first priority when working with this group, and empathy is the core of such work. The key is the quality of the relationship with the client.

The areas for exploration are:

  • empathetic, non-judgmental reflection of emotion
  • listening for and reflecting underlying fear, humiliation, and helplessness
  • listening for and reflecting experience of trauma
  • earning the right to challenge meaning ascribed to emotions or events
  • what is the nature of the underlying fear?
  • hate is protecting you from what?

Neuroscience approach-working with emotionally reactive clients

This approach requires an identification of the nature of the interaction and conflict management style to work out which of the different brains is talking-the survival brain, the emotional brain or the thinking brain?

Is the limbic brain talking to the reptilian brain (being reactive and impulsive) or is the limbic system talking to the thinking brain? With connection and rapport, it is possible to down regulate, and by enquiring, observing and listening with care and attention to language, there can also be up regulation where appropriate.

The thinking brain needs:

  • safety and an enriched environment
  • sense of attachment
  • need for control
  • need for distress avoidance and pleasure maximization
  • need for self-esteem protection and enhancement

Identification of where a person is at is crucial to being able to work with them. Are you hearing criticism (fight), contempt (flight), defensiveness (flight) or stonewalling (freeze). Are they in a state of hyper-arousal (post traumatic stress) or the hypo-arousal zone (dissociating and memory issues)?

The aim is to find the window of tolerance in between these places. This is the optimal arousal zone. Some strategies include:

  • visual-looking at where they are, giving them a choice of where they are
  • being curious about brains and what they really know
  • educating-giving them an opportunity to get unstuck and think about things in a different way
  • criticism-gentle challenging of thinking
  • defensiveness-taking responsibility
  • contempt-what has worked so far
  • stonewalling-self soothing

Mediation gives the opportunity to find the window of tolerance, using a parallel process and transference, somatic triggers (feeling the physical consequences) and emotional triggers (challenged by client).

The idea is to peel the onion

  1. What they say
  2. How they say it
  3. What they do
  4. How they feel
  5. What emotions are driving this

Saying sorry-the power of apology in conflict resolution by Chris Marshall

The giving and receiving of an apology is one of the most profound of human interactions with the power of reconciliation and the restoration of human relationships. It can satisfy a range of moral, psychological and emotional needs and subjective needs including confering peace on conflict, restoring trust, attesting to the commitment to change, and meeting the needs of both.

A full apology needs to be:

  • Timely
  • Acknowledge the injury/take responsibility for the wrong-doing
  • Consequential actions based on this-issues dealt with
  • Remorse, guilt emotion
  • Allow for forgiveness and avoid hatred

This must be contrasted with a partial apology:

  • Insincere
  • Manipulative
  • Self-serving
  • Inflict further pain
  • More destructive than none at all

The paradox of apology

Apologies allow us to cope with human reaction and allow relationships to function adequately. They need to acknowledge the distress and the injury suffered, and attempt to remedy the hurt. They can reduce anger and the desire for retribution, They improve the dynamics of settlement negotiations, and can prevent escalation. They are beneficial to the responsible party (can deal with guilt, shame and empathy) and enable reconciliation and the ongoing relationship.

But apologies are also fraught with complexity and uncertainties. The consequences can be disastrous. They can be complicated by a lack of skillfulness (undermines their need to be in control, threatens feelings of adequacy, self-image and image of others) and lack of empathy or psychopathy. There can be ambiguity about the existence of an apology or uncertainty as to whether the apology is appropriate. The harm can be accidental, unavoidable or unintentional, or both parties may have contributed to the problems. There may be possible legal ramifications, as they may imply an admission of fault or acceptance of legal liability.

There are various different types of apology:

  • Polite apologies-social niceties
  • Pseudo apologies-masquerading as an apology but shifting responsibility to the reaction of the listener=very damaging
  • Premature apology-offered before the action, denying the right of denied parties to have their rights acknowledged, very destructive
  • Sympathetic apology-appropriate if authentic-acknowledge suffering in empathetic way
  • Personal, moral apology-recognition, responsibility, remorse, consequences
  • Formal, public apology-to a group, essential step to past injustices being resolved

Preparation:

  • What is this for
  • How should it take place
  • What sort is appropriate
  • How to express it
  • How will the other side appreciate the sincerity
  • When should it take place

Assisting clients to shift from being defensive to responsive in FDR

The aim of FDR is to provide containment, a sense of hope, to connect as humans and to focus on strengths. But when working with high conflict clients, some behaviours are automatic to defend from perceived harm, and these can prevent FDR from working in situations where court is not an appropriate option. If there is not an alternate approach to working with these families, the process is likely to be terminated.

One FRC has developed an intervention to assist these families to stay in FDR. They attend the Intake, a Child Focus Session, but are identified prior to the FDR session as requiring further input. A separate professional works with them separately for 3 90 minute sessions called the Listening session, the Shift session and the Preparation session. They then return to the FDR process.

Some of the actions that may indicate the need for this intervention may include jumping straight to solutions, being stuck on past events, stuck on defending their position, not wanting change, or a break down at the issues stage of FDR.

This intervention elaborates the exploration stage of the mediation process.

These additional sessions :

  • Offer a safe space
  • Explore the different perspectives of the dispute
  • Develop options that might be agreeable to them as well as workable for the other party
  • Zoom out on the bigger picture and co0nsiders and identifies a wider range of solutions
  • Focus on the needs of the child and willingness to set aside conflict.

The development and application of peace jurisprudence by Judge Kokaram from Trinidad and Tobago

The aim of this judge is to use peace-making skills including compassion and consensus in the court context. He identifies the adversarial landscape as representing a lack of compassion, polarization of the parties, a lack of dialogue, the absolute antithesis of the democratic system. He sees the judiciary as the ones to spear head this approach, and advocates for a fundamental change in the traditional role of the judge.

He proposes the development of a peace jurisprudence by looking at the adversarial process through the mediation lens to result in judicial humanism with peace as the outcome, a priority on reconciliation, restorative, harmonizing, and promoting self determination. This is a mixture of mediation practice, therapeutic jurisprudence and restorative justice.

This judge is not only promoting this view of justice but he is putting it into practice. He has a sign outside his court room “Welcome to the peace room” and his court have been redesigned with round tables, and he promotes the use of a holistic approach to dispute resolution.

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