A Reflection on Whether a Safe Model of Family Mediation is Possible. Or: ‘Bring Back CFDR!’

Feminist writing in the 80’s and 90’s questioned whether family mediation could be a fair process resulting in just outcomes where there was a history of domestic violence. Informed and inspired by the work of some of Australia’s great legal feminist thinkers – such as Hilary Astor, Kathy Mack, Reg Graycar and Jenny Morgan, my own stance was, for at least a decade, quite critical about the efficacy of the use of informal dispute resolution processes in such circumstances.  This stance is documented in, for example, ‘Mediation and the Art of Power (Im)Balancing’ (1996) 12 QUT Law Journal 264; ‘Family Law Mediation: Process Imbalances Women Should Be Aware of Before They Take Part’ (1998) 14 QUT Law Journal 23; ‘Federal Family Law Reform in 2005: The Problems and Pitfalls for Women and Children of an Increased Emphasis on Post-Separation Informal Dispute Resolution’ (2005) 5 QUT Law and Justice Journal 28; and ‘Using the Feminist Critique of Mediation to Explore “The Good, The Bad and The Ugly” Implications for Women of the Introduction of Mandatory Family Dispute Resolution in Australia’ (2006) 20(5) Australian Journal of Family Law 45.

My work as a feminist dispute resolution academic has always been informed by my involvement (as a volunteer since 1993) with Women’s Legal Service in Brisbane (WLS).  A Service like Women’s is very special – the staff do amazing work every day advocating for justice for vulnerable women, specializing in complex family matters and domestic violence.  At Women’s, we are committed to respecting the lived experience of the women we serve.  This sometimes means questioning whether polemical theoretical feminist stances are supporting or hindering the cause of advocating for justice for them in a real sense.

In the mid to late 2000’s we were collectively starting to think that perhaps some of our clients who were victims of domestic violence could benefit from access to a safe form of family mediation. We believed that the standard model could not be applied or experienced fairly and with just outcomes for women and children in the particular circumstance of a history of DV.  And we knew that the alternative options available to our clients (who often are unable to access legal aid as well) would almost certainly result in injustice for them: on the one hand they could negotiate over the kitchen table with the perpetrator of violence against them, and on the other hand they had the spectre of self-representation in the Family Court.

For a number of years we advocated at a national level, and in a range of forums, for a safe model of family mediation.  We argued that in order to ensure that the voices of vulnerable parties can be heard in family mediation, an intentionally designed process with specific steps and strategies was necessary.

In 2009, the Australian Federal Attorney-General’s Department came to us at WLS and asked if we would design the model we were arguing for.  In collaboration with many experts and friends of WLS and in consultation with a national reference group, Angela Lynch (of WLS) and I designed a model of family mediation which was called Coordinated Family Dispute Resolution (CFDR).  It was an innovative, distinct, new model of family mediation with theoretical, scholarly foundations, using a multidisciplinary approach within a framework designed to ‘provide a safe, non-adversarial and child-sensitive means for parents to sort out their post-separation parenting disputes’ (R Kaspiew, J De Maio, J Deblaquiere and B Horsfall, ‘Evaluation of a Pilot of Legally Assisted and Supported Family Dispute Resolution in Family Violence Cases: Final Report (Australian Institute of Family Studies, 2012), ix). CFDR was piloted between 2010 and 2012 in five different locations around Australia.

CFDR is resource intensive. But it accurately represents the level of resources that are necessary for safe mediation where there is a history of DV.  CFDR involves a strong focus on preparing the parties to be ready, as a result of counselling, and legal and information sessions, for their participation in family mediation. Its coordinated and multi-disciplinary nature means that a number of professional participants are asked to bring their unique professional expertise to the model. The team of professionals required for the implementation of CFDR includes: mediators who specialise in the process and conduct of mediation; lawyers who provide each of the parents with independent legal advice, advocacy and representation; domestic violence workers who conduct specialist risk assessment, counselling and support, information and advocacy to victims of domestic violence; and men’s workers who work with a gendered analysis of violence and follow recognised best practice standards for working with perpetrators of family violence and provide counselling and advice to perpetrators in the process (R Field and A Lynch, ‘Hearing Parties’ Voices in Coordinated Family Dispute Resolution (CFDR): An Australian Pilot of a Family Mediation Model Designed for Matters Involving a History of Domestic Violence’ (2014) 36(4) The Journal of Social Welfare and Family Law 392). The model also envisages a specialist children’s practitioner to be involved in matters where appropriate, along with other specialist workers, such as disability and migrant workers, depending on the needs of the family.

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 (Kaspiew et al, 2012). 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.

Despite the positive evaluation and the ardent belief by many in the pilot agencies that this model is necessary in the family law system as a safety measure for victims of violence and their children post-separation, CFDR has not been rolled out due to political, resource and funding issues. This is unfortunate, and the Australian government’s failure to capitalise on the proven efficacy of CFDR jeopardises the safety and value of family dispute resolution practice in domestic violence contexts, and compromises the hearing of the voices of family violence victims and their children.

I strongly urge the Australian government to better acknowledge that the safety of victims of violence in family dispute resolution is an important family governance and justice issue. The future lives of families are ultimately at stake.  The CFDR model should be reintroduced.

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About Dr Rachael Field

Rachael is a Professor of Law in the Law Faculty of Bond University. Her key teaching and research interests are in legal education and dispute resolution. Rachael was awarded an Australian Learning and Teaching Council Citation in 2008 and was made an ALTC Teaching Fellow in 2010. In 2010 Rachael worked with Professors Sally Kift and Mark Israel on the development of the Threshold Learning Outcomes for Law. In 2013 Rachael and Prof Nick James published a first year law text entitled "The New Lawyer". Rachael has been a member of the First Year in Higher Education Conference organising committee since 2007 and now chairs that committee. She was awarded the 2013 Lexis Nexis Australasian Law Teachers’ Association Major Prize for Teaching Excellence and Innovation jointly with her colleague James Duffy. In 2014 Rachael was awarded an Office of Learning and Teaching national Teaching Excellence Award. Rachael has also been a member of the Women’s Legal Service, Brisbane Management Committee since 1994 and has been President of the Service since 2004. In 2010 Rachael, along with the Women's Legal Service Brisbane, was commissioned by the Federal Attorney-General to design a model of family dispute resolution for use in matters where there is a history of domestic violence. This model was implemented in 5 locations around Australia for 18 months and was evaluated by the Australian Institute of Family Studies. In 2011 and 2012 Rachael was invited by the Australian Human Rights Commission to contribute to their International Program by presenting the model to bi-lateral workshops with the All China Women's Federation. Rachael completed her PhD through the Faculty of Law at the University of Sydney under the supervision of Professor Hilary Astor in 2011. Her thesis explored the notion of neutrality in mediation and offers an alternative paradigm based on professional mediator ethics. Rachael was named Queensland Women Lawyer of the Year for 2013. Research Interests • Dispute Resolution • Women and the Law • Restorative Justice • Family Law • Legal Education

10 thoughts on “A Reflection on Whether a Safe Model of Family Mediation is Possible. Or: ‘Bring Back CFDR!’

  1. This CFDR is a grand breaking model with proven positive results for the those who have experienced family violence and are engaging with FDR

    In the long run these kind of initiatives have a huge impact on families

    In the short term they help victims of violence navigate FDR.

    Governments need to fund this kind of innovation!

    Liked by 1 person

    • Thanks so much Kathy. There are some agencies – like Unifam in Western Sydney and Legal Aid NSW – who have recently let me know that are interested in advocating for the reintroduction of CFDR. And there are practitioners – like Jon Graham and Libby Watson – who have been very thoughtful in thinking how the CFDR model could be enhanced with trauma-informed practice. With the support of the ADR Research Network I would love to take this message to the Federal Attorney-General. What do you think?

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      • Yes! As I understand it, a number of CLCs were also attempting to develop a ‘modified’ CFDR model, because they believed so strongly in its efficacy.

        Liked by 1 person

  2. Failing to fund and roll out a CFDR model across the family dispute resolution sector following the successful pilot (successful from the perspectives of participating parents who were empowered to make decisions in their children’s interests, from professionals who demonstrated the great value and power of collaborative practice, and the community because it meant matters with serious violence were not using, or using less of, court resources) is indeed a lost opportunity. Not only is it demonstrated to have worked, and to have done so safely, CFDR also offers promise as a model that can be adapted for other vulnerable parties, such as people from culturally and linguistically diverse backgrounds. Yes, it takes more resources than a minimalist model; but the cost savings (to the community and to the participants) in the long term are significant. More importantly, it created a context where vulnerable parties with complex problems and histories were supported to self determine. This is a matter that the Federal Government should reconsider, and so continue to demonstrate commitment to a just family law system with cutting edge mediation models that work in practice. Bring back CFDR!

    Liked by 1 person

    • Hear hear Sue! Let’s make it a mission! You are absolutely right also that CFDR is a model that can be culturally competent as well as sensitive to the voice of children. DV costs Australian society billions of dollars each year. Any government investment in CFDR is a drop in the ocean compared with that – but it is a safe investment because CFDR has a proven record. If we inform the CFDR model with the notion of trauma-informed practice that Jon Graham and Libby Watson have recently been talking about – then the model would have even more efficacy and be an even better investment of government dollars.

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  3. Pingback: International Women’s Day – gender issues in dispute resolution | The Australian Dispute Resolution Research Network

  4. Pingback: “Safe and supported”: Developing a model for mediating family violence cases beyond family law | The Australian Dispute Resolution Research Network

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