Appropriate dispute resolution for families with a history of high conflict including domestic violence has regularly come down to conducting shuttle style mediations where the parties concurrently discuss their issues with a mediator who goes back and forth between them either by phone, online, or face-to-face.
Perhaps the most concerning issue with shuttle mediation, is that the fundamental purpose of mediation is arguably lost in the process as the parties do not “hear and acknowledge each other”, including each party having the opportunity to say positive things about the other and to discuss their common understanding of circumstances so as to move each other from a fixed stance:
“For many parties involved in a family mediation, acknowledgement from the other party, be it that they are a good parent or that they understand how the children are dealing with all this, can be important to assist the parties to move from positions. In shuttle mediation…it does not have the same impact as if the parties can hear and respond to each other“[iv].
Further, as both parties are not in the same room together during negotiation the mediator is left to challenge and test the parties’ positions, identify their interests, and assist in the negotiation making it difficult to test whether agreements reached are sustainable and whether the parties have made a genuine effort[i].
A Better Model for High-Conflict/High-Complexity Couples
In consideration of the noted problems with isolated shuttle mediations and in response to the 2006 AIFS research and subsequent findings regarding high-conflict/high-complexity couples[vii], the Coordinated Family Dispute Resolution (“CFDR”) model was created by the Brisbane Women’s Legal Service with the pilot and the evaluation funded by the Federal Attorney-General’s Department. The study was borne of findings that FDR mediators and other professionals were ignoring power differentials in pursuit of the creation of “a level playing field” through mediation (which is largely unachievable in cases of domestic violence to begin with).
In relation to study parameters, FDR mediation was practiced as a multidisciplinary collaborative process lasting around 211 days (compared to 99 days in the control group) and included mediation, domestic violence support services, men’s support workers and lawyers for each party. Risk was assessed on an ongoing basis with parties being prepared for mediation only when assessed to be at a point where mediation would be suitable. The four phases were as follows:
- A focus on risk assessment, including the use of perpetrator programs and men’s workers;
- The receipt of counselling, legal advice and preparation for FDR mediation (with lawyers advising of options and processes and counsellors discussing and working through complex issues at first instance);
- A facilitative model of mediation; and
- Checking if agreements continue to be appropriate and safe.
Perhaps due to this continual risk assessment, comparatively less cases eventually participated in mediation in the study group. However, for the parties that did enter FDR mediation in the study there were far more agreements reached than in the comparison group, including a high level of interim agreements reached (56% compared to 8% in the comparison group). The lower number of couples reaching FDR mediation was understood to be as a result of there being a more intensive domestic violence assessment involving some matters being found inappropriate for mediation, and due to a high level of single participants in the study where one partner refused to participate. Significantly in this regard, although FDR mediation in the study was spread out over several shuttle sessions due to the implementation of the risk assessment process, some clients continued to report feeling unsafe emotionally which highlights the intense experience mediation can be for parties with complex issues. The study recognised the importance of offering multiple smaller shuttle sessions, and of being aware of, and responding quickly to, indicators of distress and inappropriate behaviour.
Importantly, it was found that the holistic approach by all professions involved towards each family’s emotional and legal issues created an environment of shared knowledge, several perspectives and avenues of support, and various levels of responsibility in each matter. Although needing further development, the results indicate a way forward in establishing standard processes between professionals to safely manage risk in high-conflict/high-complexity couples.
The study ultimately recommended that further research be conducted in relation to findings that mediation may cause trauma where there is a history of family violence, and in that regard that there should be caution in the use of shuttle mediation as a panacea for high-complexity FDR cases as this is an environment, which can be manipulated by perpetrators[viii].
Further thoughts on Shuttle Mediation
There are further practical limitations to shuttle mediation including lengthy delays as all processes are completed twice (opening statements, setting the agenda and exploring the issues). Delay arguably then puts pressure on the mediator to ensure equal time is spent during each phase with a party[ii]. The issues also extend to practical difficulties setting a mutual and neutral agenda when it is done at different intervals in time, reducing each party’s tendency to vent to the mediator, and in ensuring that decisions reached are joint decisions and not overly influenced by the mediator as noted previously[iii].
Regarding the impact of a mediator for example, attempting to express emotions on behalf of the parties, there also arise issues of consent, confidentiality and propriety, as to whether a mediator is able to, or indeed should, convey the emotions of participants so as to make information more compelling. In that regard, although consent may be given by a party to convey substantive information, this may not extend to conveying feelings, if it is at all possible to convey feelings accurately. Further, to the extent that feelings cannot be accurately expressed there arise issues of propriety, given the stakes for the parties involved should feelings be misread. Emotive discussions are arguably practically and ethically impossible for mediators to replicate in shuttle mediation.
Unfortunately the mediation process is significantly compromised as a result of the shuttle mediation style and it is unsurprising then that isolated shuttle mediations show poor long-term outcomes in high conflict/complexity cases.[v] In these cases, couples are better served by longer-term therapeutic interventions prior to being involved in any informal dispute resolution[vi].
In the event you are involved in a high conflict matter and would like our help please do not hesitate to reach out to us for an obligation free information session.
[i] Hilary Astor,’Genuine effort in family dispute resolution’ (2010) 84 Family Matters 61.
[ii] Astor, Hilary 2010-03-22, “Genuine effort in family dispute resolution”; Family Matters, no. 84, pp. 61
[iii] Astor, Hilary 2010-03-22, “Genuine effort in family dispute resolution”; Family Matters, no. 84, pp. 61
[iv] Astor, Hilary 2010-03-22, “Genuine effort in family dispute resolution”; Family Matters, no. 84, pp. 61
[v] Linda Kochanski, ‘All aboard the shuttle? Pros and cons of the shuttle approach to family mediation’ (2015) 35(10) The Proctor 40.
[vi] Ibid.
[vii] Catherine Caruana , ‘Dispute resolution choices: a comparison of family dispute resolution, family law conferencing services and collaborative law’ (2010) 85 Family Matters 83.
[viii] Per findings from a large research program (https://aifs.gov.au/our-work/research-expertise/laws-andfamilies) conducted by the Australian Institute of Family Studies (https://aifs.gov.au/) in Rae Kaspiew 3 August 2016 Separated parents and the family law system: What does the evidence say? Australian Institute of Family Studies, 1.
