Primary Dispute Resolution Services in Australia - Part 2
To View Part 1 of Letter: Part 1
To View Part 3 of Letter: Part 3
Joint approach
The facilitator outlined the rationale for the day's agenda explaining that five of the nine questions about the delivery of dispute resolution services would be addressed during the day.
The Attorney-General clearly sought particular advice and those issues would be specifically considered at the joint meeting. The questions to be addressed on the day of the joint meeting were:
- How can the use of dispute resolution services be promoted in the community and among gatekeepers?
- What relationships should exist between different dispute resolution service providers?
- In the short term, what options for change exist to create a "stronger partnership" between dispute resolution service providers?
- In the longer term, what are the options to encourage more dispute resolution work to be done by "community-based services"?
- How can more people be diverted away from any involvement in adversarial processes and there be a reduction of the numbers of people commencing proceedings in the Family court?
Participants were asked to answer the questions with 2 scenarios in mind: (1) "What if the status quo is retained?" and (2) "What if PDR services are moved to community based agencies?"
Common themes
The meeting was asked to consider common themes in submissions to the Attorney-General's Department's PDR paper which they had read. A number of themes emerged which had commonality across the selected submissions:
- PDR services, especially conciliation, conciliation counselling, counselling and mediation have evolved and developed in all sectors, including the community sector, since the Family Court service was established.
- Any arrangement of services must have a client focus.
- Expertise developed in Court PDR services should be retained and utilised.
- Reportable counselling and similar work (when proceedings have been commenced) should remain with the court. However there was no commonality on funding or control of those services (nor were they discussed).
- Cases involving serious violence are usually best handled in the Court for reasons of expertise and safety.
- Relationship counselling is better delivered by community based services.
- Education of professionals and the community (gatekeepers) about present and future availability of services is necessary in the current system.
- There is no evidence or certainty that change would succeed in deflecting people from the court.
- Change should not be based on untested assumptions.
- Any changes to the existing arrangement will not be cost neutral.
How can the use of dispute resolution services be promoted in the community and among gatekeepers?
The facilitator asked the group to consider this question keeping in mind the two scenarios and some members noted that some of their answers appeared to apply to both. Some members of the group commented that they had great difficulty in the identification of and delineation about how and where dispute resolution services should be categorised and that it should be expected the general public would have even greater difficulty in doing so.
Environment/market
- The community is more adversarial now than in 1976 and the forces for cooperation are less powerful than the forces for competition. The social philosophy of competitiveness runs counter to a non-adversarial/mediatory culture. Public education must address this issue as an issue of public attitude. There might be a need to consider the issue of competition v cooperation and how these perspectives differ i.e. big companies collaborate in order to survive the competitive environment. However, another view was that the competition/cooperation dichotomy is too simplistic to explain the dispute resolution services environment.
- Research is needed to determine what the public wants and knows about.
- Market research and promotion needed. Use TV (popular programs/soapies or advertisements) to sell the message of alternatives to courts and the police. The current media images suggest law and order and judicial based resolution rather than a community based model of resolution.
- A 'restaurant strip' approach was suggested i.e. range of choices of services in the one location creating client choice and exposure to alternatives.
- Design a clear pathway for the public through the system. However, before that can be done, the whole family law system needs to know who it is and what it does.
- There is a need to 'normalise' crisis PDR services e.g. time off from the workplace to attend counselling should be similar to attending the doctor.
- Family Court sessions should be more comprehensive and include the best interests of the child and possibly even attendance by children.
- The education process should be broad based e.g. by taking it into schools at all levels.
Referral and interaction
- Use existing court mechanisms to encourage people in certain directions.
- The role of lawyers as gatekeepers needs attention to ensure that when people come into the system they are directed to the right services e.g. lawyers have contact with and confidence in the court system but are not sufficiently aware of the quality and range of private or community services. This may require better education for lawyers about the range of PDR services available in the community. At the same time, the clients often want to know their legal rights before taking any further steps. Clients have confidence in their lawyers' networks and may be reluctant to access other services, so a cultural change may be required. This might be achieved through educating people about access to services beyond strictly legal services.
- Local law societies and local community based services need to interact to build trust and confidence in each other, as was the case with the development of mediation services.
- Academics need to interact e.g. Adelaide Law School held a mediation conference conducted by the University of South Australia. Education about alternatives should be part of relevant undergraduate courses at university.
- Identify the incentives and disincentives of referral by gatekeepers in the present system especially where they have a vested interest in undertaking the work themselves e.g. cost (loss of business), workplace practices, availability.
- An effective partnership between the court and community based services, lawyers and the community must be a first priority. There is a need to consider who should be in the partnership, what their roles should be and how a partnership approach should be used as an intake strategy.
- There should be a wider base of intake gatekeepers who must understand the total system. This may include taking on an early preventative focus by getting people to the appropriate services earlier in the process. The suggestion was made of a cohesive panel represented by a range of stakeholders who could present to and educate gatekeepers about the network of existing services. Examples of gatekeepers whose roles should not be underestimated include legal aid commissions and general practitioners.
Professional issues and work practices
- A need to rectify the lack of leadership in use of dispute resolution services e.g. mediators have no profile or career path. High profile professionals such as judges might be utilised to increase the profile in alternative dispute resolution (perhaps by using mediation themselves).
Funding
- Without a commensurate injection of funds, there is a risk that an extension of services will diminish the quality of services.
The facilitator proposed that there were two underlying fallacies in this question about promoting dispute resolution services in the community and among gatekeepers. One is that the government itself is a prodigious litigator. It models its own problem solving policy on the court/adversarial system but encourages the public to do the opposite. The Government should consider its own behaviour in the context of the implementation of models designed to change the behaviour and attitudes of the public.
The second fallacy may be the assumption that a large number of people will be helped by an expansion of services. The facilitator proposed that only a tiny percentage of people access services (the top of the pyramid), and that an increase in services will only marginally increase the percentage of people helped. Most people in conflict tend to settle or give up and there is no reason to suggest that this will change in the future.
In the short term, what options for change exist to create "a stronger partnership" between dispute resolution service providers" ?
Environment/market
- Mapping of services, comprehensive guides and service directories produced. An efficient use of IT services and products.
Referral and interaction
- There is a problem with quality assurance. How do you know the quality of a service before making a referral. There are issues of fear and trust about making a bad referral.
- The NZ coordinator model warrants further consideration. This is where a person with a comprehensive understanding of the range of available services can coordinate referrals at the intake stage. The Government might fund such a position in the court, possibly along the lines of the Melbourne Magistrates Court Juvenile Justice Officer or Intellectual Disability Officer. Such a position would increase the knowledge of the services, improve confidence in the system and may reduce the need for legally aided separate representation of children where the coordinator can assist the primary professional handling the case. This was referred to during the course of the day as 'the broker model'.
- Discussion of the broker model ranged from simple networking to counter diagnosis. The role of the broker needs full consideration e.g. by a national task force. The Family Court Rules already provide for the appointment of Assessors but is currently not utilised. The broker model would lend itself to use of these existing provisions. The position would then have higher visibility and trust in the Court although there was suggestion that the broker would need to be independent from the court but establish close liaison with the court and community organisations. Brokers would need high level specialist skills given the need to negotiate with other professionals.
- Court case management guidelines discourage ordering interim reports (perhaps as a cost issue) and the better use of assessors (or brokers) might address this.
- An exchange/secondment program between services e.g. someone from a community organisation could work in the court or vice versa. This would form part of a networking strategy to 'cross-fertilise' across the family law system.
- A display of high profile partnership at a high level, not just grass roots cooperation, is needed to assist organisational change.
- Clarity with client and gatekeeper as to services available (requiring an increase in trust to make referrals).
- Local area committees of people representing the field of stakeholders might be set up at the local level to get cooperation and as a mechanism to set up the partnership. The committees would need close links with the communities they serve.
- A proposal was put forward for a national task force to support the local area committees. The goals of the local area committees need to be carefully defined to create a partnership with certain outcomes. These might include improved client referral, client choice, accessibility, information dissemination and uniform promotion of PDR services. A task force might also oversee, direct and coordinate change.
Professional issues and work practices
- Impose some professional requirement for groups to meet along the lines of Continuing Legal Education. Part of a continuous improvement strategy might include specific skill attribution/accreditation across defined skill areas of the family law system.
- It is necessary to investigate who are the parties to the partnership and what they have to gain or lose in the partnership. If some parties have too much to lose, the partnership won't work.
In the longer term, what are the options to encourage more dispute resolution work to be done by "community based organisations"?
The facilitator pointed out that the solution is embedded in this question i.e. PDR will move away from the Court to the community-based organisations. There was some discussion about whether the use of the word 'encourage' was really to 'compel' and that a compulsion to use community based PDR services is therefore a strategy within itself. Some members asked the questions "who needs to be encouraged, the clients or the referrers", and "what are the obstacles"?
Environment/market
- How would services be marketed to reach clients; in the community, when filing in court, when getting an Apprehended Violence Order from the Magistrates Court? Suggestions included making videos, personal presentations and education packages available in courts, community organisations, libraries and other community agencies/bodies.
- Need to change community ethos so as to view dispute resolution services as a cooperative effort for the family i.e. the public should want to use the services. The public also need to see visible signs of the courts working with community organisations. It was suggested that this implies a human cultural change and it might be beneficial to consider a generational context to the change. This might incorporate targeting young people through educative/preventative measures.
- The Child Support Agency and the Department of Social Security should not be overlooked as stakeholders. Both are developing education and mediation services.
- Need to clarify who is the client at different stages e.g. at pre-filing it is a consensual client; post filing the court is the client; as funder, the government is the client.
- Policy development, service design and resource allocation must be developed according to best practice with performance indicators, standards and benchmarks (as is being undertaken with the introduction of FAMQIS in the community organisations). Currently there is no compulsion to commit to family law standards (where they exist).
- Collocation of services (one stop shop) will encourage use.
Referral and interaction
- Case management practices could be developed so that lawyers or community mediators 'retain ownership' of their case i.e. the case comes back to them after being referred to other agencies or for legal advice. This confidence already exists between lawyers and court mediators.
Structural change
- One suggestion was to establish an Office of the Status of Mediation, along the lines of the Office of the Status of Women, to coordinate, research and clarify roles of service providers/stakeholders and gatekeepers. Another suggestion was that central coordination would be beneficial in some form. Attention was drawn to the fact that the purchaser/provider model accounts for one aspect of managing a service delivery system. There is also a need for administration, evaluation, training, data collection, grants, tendering processes, marketing etc. The benefits of a purchaser/provider model include Quality Assurance, policy and service design, transparent monitoring and evaluation.
Professional issues and work practices
- Need to clarify when a client should go to lawyer and when to a mediator. There is a need to deconstruct what lawyers actually do to ascertain what community organisations could do. Lawyers would trust mediators more if they were legal professionals and see the traditional role of the legal profession upheld by the courts in that clients are referred back to them for further legal advice (case ownership). Lawyers need confidence that their clients' rights are protected and that the client acts with knowledge of their rights.
- Reduced filing fee or fast track hearing could encourage use of voluntary dispute resolution at an earlier stage. Otherwise the cost to the client is high because, for example, if you delay filing there is a delay in hearing.
- It could be a pre-requisite to filing that PDR has been obtained, or a credit could be given as an incentive to get PDR e.g. move ahead in the court queue if PDR fails. Potential client rewards for trying PDR first.
Funding
- More funds needed if community based services are to do more e.g. for security, training, redesign of services/agencies (administrative and organisational structure). Data is needed on unit service cost.
- Cost to client of community based services; would clients use them when court services are free?
- Need to determine what are priorities of the services. Whether it is substitution of services, or additional services, and whether it is program driven or budget driven.
To View Part 1 of Letter: Part 1
To View Part 3 of Letter: Part 3