Using peace to resolve family law conflict
5th May 2016
Empowerment, recognition of one’s feelings, acknowledgement, empathy, and long-term skills building are experiences seldom experienced by families litigating in the family law system. Litigation in the family law system is harsh. Anecdotally speaking, parties are passive and angry agents in the family law system with no autonomy over the final decision about their children (in parenting matters). The role of lawyers in family law litigation can fuel this anger; the lawyers are fundamental key players in the conflict. Their job is to ‘fight’ for their respective client. There is no peace in this type of fighting where the parties are pitted against each other. Arguably, after final decisions are handed down by judges, parties are in no better position to resolve future family conflict as co-parents, and leave the family law system with a heightened sense of anger and loss of decision-making autonomy. There are seldom gains in family litigation.
The irony of litigating family matters is that parties are effectively using litigation to counter and respond to family conflict. But rather than working as a conflict resolution tool, litigation actually extends the conflict, and perpetuates further conflict. Yet somehow this negative plus negative response is meant to achieve a positive result.
Moving beyond litigation, an alternative means of resolving conflict is the practice of transformative mediation. This is a powerful tool for families. It uses empowerment and recognition to enable parties to empathise with each other, and to acknowledge each others’ feelings. The underlining philosophy is to facilitate a shift in the way the parties respond to each other, and to acknowledge each others’ feelings as a way of moving forward. It is basic human psychology. Where there is understanding, there is communication. The ultimate goal is to engage peacefully with each other, and oneself. This alternative dispute resolution process is an opportunity to view and deal with conflict and broken interpersonal relationships in a different way. Unlike litigation, this tool does not focus on the conflict, it moves from focusing on the negative 'he said,' 'she said' to actually understanding what he said and she said and what he and she meant: in this approach, communication is king.
Robert A Baruch and Joseph P Folger first articulated this type of mediation practice.
Transformative mediation is an opportunity to move away from focusing on conflict. It provides a safe space for parties first to examine their own feelings, the other party’s feelings, and then engage in open discussions with a view of transforming interpersonal connections. If agreement is reached, then that is a bonus.
A huge benefit of mediation practice in general, and in particular this style of mediation, is that there are no fixed and rigid rules about the way a practitioner should convene the mediation session. This means that a mediator has the discretion to conduct transformative mediation in a way that will best suit the needs of the parties (of course, always subject to ethical considerations). What does this mean, then, in practice? It means, that in order to get the parties in the optimum zone for rational communication, calmness, awareness, and out of the ‘fight zone’, a practitioner has a range of tools to use, such as mindfulness practice, and strengths-based approaches.
Mindfulness practice in transformative mediation is beneficial to the parties because they are encouraged to sit in silence during parts of the session, and engage in breathing exercises. This calming exercise helps to keep the parties engaged peacefully, and to minimise and manage outbreaks of anger and other emotions, which can debilitate calm thinking processes.
The use of strengths-based approaches is the antithesis of litigation. Family law litigation usually focuses on the negatives of the other party, whereas strengths-based approaches encourage the parties to identify and acknowledge their own strengths, and the strengths of the other party.
This ‘zen’ practice is open to practitioners to use if they are willing to step outside their own limited beliefs about how family conflict should be resolved, and pursue alternative conflict resolution for families.
Chrissy Leontios is the Principal Lawyer and Family Dispute Resolution Practitioner of the new firm, CLEON Legal & Mediation Services (Justice. Fairness. Equality). This firm was set up to address access to justice issues in Australia; it offers virtual services, with a focus on assisting self-represented persons, in family law matters (drafting Divorce Applications, Consent Orders, Initiating Applications), criminal matters (reviewing briefs of evidence, and assisting accused persons with writing submissions, bail applications, and other criminal matters), and prisoner ombudsman appeals. Additionally, this firm assists families going through family mediations, in person, via the telephone, and via video-link. Chrissy is involved in the academic development of the Graduate Diploma of Family Dispute Resolution Program; she researches and writes widely in this discipline. She is also a sessional tutor with James Cook University, and provides tutorial support in the Indigenous Tutorial Assistance Scheme. Chrissy also conducts Official Visitor Inspections in Townsville prisons. She has a fierce passion for prison accountability, and the fair and humane treatment of prisoners.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).