Family Dispute Resolution: The Importance of an Intake
By Linda Kochanski
Any form of mediation requires the mediator to conduct an intake or pre-mediation assessment to see if the issues and the parties are suitable to proceed to mediation. The power of the intake is seen most effectively in family mediation, which now most commonly takes the form of mandatory family dispute resolution (FDR). An intake interview in some form is compulsory under the Family Law Act 1975 (Cth), but all family mediators, whether registered family dispute resolution practitioners (FDPRs) or not, should never underestimate the importance of an intake.
As a practising FDRP, the success or otherwise of a mediation can be attributed to how the intake or pre-mediation interview was conducted. An intake or pre-mediation assessment process is a mandatory step in FDR (Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth), reg 25). Its purpose (in accordance with the Regulations) is to ensure that the parties are safe to proceed to mediation and that the issues in dispute are suitable for resolution in the FDR process. It is an opportunity for the FDRP and the parties to make an assessment about whether the FDR process is the most effective way of resolving the parties’ presenting issues. The importance and benefits of a well-conducted intake is often overlooked and for many FDRPs it is seen purely as an issue-based and content-gathering exercise that must be completed to comply with the Regulations.
However, used well, the intake can be so much more. It can be, in itself, a process for the resolution of issues in dispute between the parties or, at the very least, it can be used as a tool to coach parties on how to resolve the matters in dispute between them. For many parties an intake can be seen as a way of normalising the separation and the subsequent roller-coaster of emotions that a party faces when dealing with separation, children’s issues and property matters.
An intake should assist the parties in a separation to identify the best process for them to resolve their dispute as expeditiously as possible. It should be a process that the parties understand, can participate in fully, and which is suitable to the parties’ circumstances and relationship requirements. An appropriate intake should assist the parties and the FDRP to ascertain whether mediation or another dispute resolution process is suitable for the resolution of their disputes. In some cases the intake can give the parties enough information to resolve the issues without any outside assistance.
Conducting an effective intake can require a very different skills set than that required in mediation. Because of the information gathering and giving aspects of an intake, much of the voice in the room will be that of the FDRP. In an intake the parties need to gain confidence in the FDR process and in the FDRP. For many parties it is also the first opportunity they have had to speak with someone about their separation. Just getting them to tell their story may assist them in moving through the process. Emotions can run high in an intake as the parties address the loss of their relationship, regular contact with their children and the distribution of property. In an intake, a party should never be made to feel that they are on a conveyor belt just being “processed” so that they can reach the next stage of their family law journey.
Regulation 25 clearly outlines the requirement for the assessment aspect of an intake process and the information that must be given to the parties at this time. However, when seen as something more than a required assessment tool and as providing an educative and coaching opportunity, an intake is the first step to reaching a successful outcome for the parties.
Many private FDRPs are not taking advantage of utilising the intake process to its full potential. The legislative requirements highlight the safety of the parties and the children of the relationship; the emotional, psychological and physical health of the parties and any other matter that the FDRP considers relevant. However, an intake should not be limited to these compulsory requirements; it should provide information as necessary for the parties to move forward to resolution.
WHAT MAKES AN INTAKE EFFECTIVE?
An effective intake ensures that both the FDRP and the parties have all the necessary information to assess whether mediation or another dispute resolution process is suitable for the parties.
An FDRP must allow adequate time for an intake. Mediations may take four hours or more, but some FDRPs allow half an hour for “corridor” intakes with the parties just prior to mediation. While this may be suitable for some disputes, it is certainly not best practice for a family dispute. An intake may take anywhere from half an hour to one and a half hours per individual attending mediation and may be conducted by phone or face-to-face, or, in the very near future, online. Even if the parties are legally represented, it is good practice for the mediator to meet with the parties individually as part of the process. A best practice intake should cover the legislative requirements and deal with the following.
The FDRP should establish the length and type of relationship. This assists in assessing how the parties view their relationship, which is particularly important when dealing with de facto and same-sex relationships. What is even more important is to assess how long the parties have been separated and who initiated the separation. These factors impact on how the parties can negotiate and the emotional impact the separation may be having on the parties. An effective approach to take in this section is for the party to rate his or her self as to their adjustment to the separation on a scale and then to rate their ex-partner’s adjustment to the separation on the same scale. This exercise can be very telling as assessments may vary considerably between the parties and this can have an impact on how the mediation session may be conducted.
It is important to ascertain how the person is feeling physically and emotionally and what support they are getting. It is often said that separation can turn a rational person irrational, and if a person is in a highly distressed state the FDRP needs to be able to ascertain whether they are capable of making decisions about their future. They may need to be referred to a medical specialist or asked to obtain a letter from their doctor to confirm their readiness to enter the mediation process. Often parties seek support from family and friends when it is clear that they would benefit from professional support.
Ability to mediate
This section of the intake is very important and FDRPs should screen parties very carefully. The information gathered under this heading is principally the information required under the Family Law Regulations (Family Law (Family Dispute Resolution Practitioners) Regulations, regs 25, 26 and 28). The ability to mediate hinges on each party being able and willing to make the necessary “I” statements within the mediation. It is during this series of questions that the FDRP should explore the conflict resolution and decision-making patterns of the parties during their relationship and subsequent to the separation.
Both of these areas are important for exploration within the intake process because the FDRP needs to ensure the safety of the parties within and outside the mediation room. While the FDRP can usually ensure the safety of the parties in the mediation session, the duty of care exists outside the room particularly in relation to arriving at and leaving the mediation session.
No-one likes to label themselves a domestic violence victim or perpetrator and that is why the questions asked about a party’s ability to mediate should look at the way conflicts were resolved during and subsequent to their relationship. The parties should be encouraged to describe how an argument between them would have appeared and how each dealt with the conflict. The questions dealing with decision-making also allow the FDRP to ascertain any obvious control issues that may be present. Sometimes the decision-making process of the parties can indicate more about the conflict resolution patterns than the parties’ arguments or attempts to resolve disputes do.
If the FDRP has concerns about the parties’ ability to mediate, there needs to be careful assessment of whether another form of the process would be suitable, eg shuttle or telephone, or whether the process is not suitable in any form and a judicial decision would be best in the circumstances. If the decision is made not to proceed the FDRP should ensure that the parties are not left to wander the “wilderness” but given referrals to suitable professionals and processes.
When gathering details about the children it is not only an opportunity to gather the normal administrative details but also a chance to explore the parties’ perceptions as to how the children are coping with the separation. Where are the children living? What is the geographical distance between the parents’ homes? How are the children coping with the separation? These are all valid questions used to explore the children’s interests, needs and concerns.
Many parties see their children as resilient and assume that if there are no obvious signs of distress or acting-out being displayed then the children are coping. This may not be the case. Questions raised in this section should deal with whether the parties have discussed the situation with the children and whether the children have asked questions which the parties could not or would not answer. It is here that the FDRP should raise the issue of the children speaking with an independent third party through the intervention of child-inclusive or child-informed practice. Child-informed practice in FDR allows the child to have a voice through a child consultant providing feedback to the parents in the mediation session so that any decisions made can have the best interests of the children as their basis. It is in the intake interview that the FDRP should begin their assessment of whether a child-informed mediation may be suitable. The FDRP needs to establish whether the parties are willing to “hear” their children in the mediation and their ability to use this information to make appropriate decisions. The practice of child-informed FDR and how the voice of the child reaches the mediation session is a paper on its own.
Another question to explore in relation to children is to ask the parties how their parenting styles differ and what they find to be the strengths of the other party’s parenting. Some parties have acknowledged similar styles while others present with very different values on parenting. The answer to this question allows the FDRP to assess what type of conflicts may arise in the mediation session and whether the conflicts are in relation to data (information), values or interests and needs. This also allows the FDRP to refer the parties to appropriate professionals who may assist them with parenting issues.
Motivation to settle
Due to the legislative requirements placed on parties, not everyone who attends FDR comes with the goodwill to settle. Many parties want to attempt the mediation process so that they can be issued with a certificate under the Family Law Act, s 60I. The intake is an appropriate venue in which to check whether there have been any previous negotiations between the parties and the results of the negotiations. If the negotiations resulted in agreements that have since broken down, the FDRP should check, with each party, how a mediated agreement would be different to their previous agreements. The mediator should ask the parties what they expect to happen to any agreements they may reach in mediation.
To reach a successful outcome in mediation, parties must be fully informed; the FDRP should ensure that the parties have had legal, financial and any other relevant advice before proceeding to FDR. Many parties will have their legal representative present at the mediation, but some parties may seek advice and attend mediation by themselves due to economic constraints. In the intake the FDRP should refer parties to the relevant professionals and encourage them to seek advice on various aspects of their dispute and to bring back a range of options for discussion. That referral may take the form of the FDRP actually making an appointment for a party with a relevant professional.
Issues in dispute
In the intake interview, the FDRP should explore the issues that are in dispute between the parties. Family dispute resolution is a flexible process that can assist parties to resolve most issues in dispute. While recent legislative changes have highlighted matters involving children, mediation also can be very successful in dealing with property and finances. The intake should explore the issues in dispute and identify any that may not be negotiable. An example of this is when one party wants to negotiate about property and the other party is only willing to do this if there can be a discussion about a domestic violence order that is in force at the time. In some cases parties wish to discuss an issue that involves a third party which requires the third party’s input; this can occur where a parent of one of the parties has given or loaned money for improvements on a property and the third party’s contribution should be considered.
Again, when discussing the issues in dispute, the FDRP should identify any referrals and resources that the parties should utilise, eg legal, financial etc. These referrals should be sourced prior to returning for the mediation session.
Information required by the Family Law Act
An intake interview is not only about information gathering on the FDRP’s part; there is an obligation on the FDRP to provide information to the parties at least 24 hours prior to the mediation session (Family Law (Family Dispute Resolution Practitioners) Regulations, regs 28 and 30). There are a number of publications produced by the Attorney-General’s Department to resource parties experiencing separation (available at http://www.familyrelationships.gov.au and http://www.familycourt.gov.au). This information should be explained to and given to the parties to take away with them and read.
The confidential nature of the mediation should be explained in detail to the parties so that the parties are able to make full disclosure about the issues in dispute. While there are certain acts and admissions that may require reporting under the Family Law Act, a party should feel that they are able to speak frankly to the FDRP about any issue impacting on the parties and their separation.
Parties need to be advised about the qualifications of the FDRP, with emphasis on their background degrees and their training in FDR. They need to be advised that the FDRP is not there to give advice, even if they are a lawyer. All mediations under the Family Law Act require an acknowledgement either verbally or written that the parties understand the information given to them at intake and prior to the mediation. Most FDR organisations and private FDRPs have an “agreement to mediate” that is signed by the parties prior to entering into the mediation session. The agreement and its terms should be carefully explained to the parties and the cooling-off period also advised under the legislation.
The value of the intake interview should never be underestimated. While its primary function is a compulsory requirement under the Family Law Act and Regulations, its purpose is so much more. It is a tool to normalise, educate, inform and assess. It is an opportunity for parties to discuss what is happening, for them and their children. For many parties it will be the first time that they have discussed their separation and their feelings with anyone. An intake conducted skilfully can not only assist the parties to prepare for a successful mediation, it can also begin to educate the parties on future conflict resolution skills.
The citation for this article is (2011) 1 Fam L Rev 164.