Family Relationships Quarterly No. 16

AFRC Newsletter No. 16 – June 2010

What impacts on a practitioner's willingness to issue a no genuine effort certificate? Thoughts from the sector

We asked service providers for their thoughts on Professor Hilary Astor's article, and the genuine effort principle in practice.

Family dispute resolution practitioners identified a conflict between the philosophy and practice of mediation, which supports a non-judgemental approach, and a requirement to commit to a judgement of effort. A key element of mediation is the trust relationship built between the clients and the mediator, and this was potentially compromised by the more enforced judgement of effort.

Many factors were identified that made it difficult to judge a client's effort on the day, such as personality type, coping skills, power imbalances, and vulnerability due to issues such as mental illness and substance use. Grief, anger or stress associated with the separation may impact on the ability of a client to focus on children's needs, which could be misconstrued as a lack of effort.

If a client had already attended assessment, education and preparation prior to joint session, this may be seen as contributing to a genuine effort.

When legal assistance is present, it may be difficult to make a judgement about who is obstructing a settlement - the lawyer or the client.

The possibility of cost orders being awarded against a party who had been given a non-genuine effort certificate was seen as a consideration in decisions regarding effort.

General thoughts on genuine effort

There was a mixed response to the ongoing use of the genuine effort principle. It was felt that very clear criteria and a firm definition was needed.

It was deemed useful as an incentive for people to treat the process seriously, and to promote discussion about expectations and consequences in the joint mediation process. Clients and lawyers should clearly understand what is expected of them, and the potential impact of refusal to attend or, if attending, not making a "genuine effort".

Examples of genuine effort decisions

Case study 1

A client involved in a shuttle family dispute resolution session engaged in a number of non-cooperative behaviours, such as rubbing the agreed agenda items off the board when the practitioner left the room, engaging in belligerent and abusive behaviour toward the practitioner, and eventually leaving the service without the knowledge of the family dispute resolution practitioner. A non-genuine certificate was issued. The client made an official complaint about the family dispute resolution practitioner.

Case study 2

Over the course of a 3-hour dispute management conference, the father had conceded to almost all of the proposals put forth by the mother to allow progressively increasing time with their pre-school aged child, leading to overnight stays. At the last minute, the mother changed her mind and no agreement was reached. The chairperson, frustrated by the back flip at the end of a long negotiation, agreed to the issue of a non-genuine certificate to the mother. On reconsideration, and after consultation with a supervisor, the chairperson reversed this decision on the basis that the mother was unable to deal with separating from the child after a highly traumatic marriage breakdown. The mother was judged as having made a genuine attempt to participate, but lacked the ability on the day to withdraw from her rigid position. The chair consequently received a letter of complaint from the father regarding the revised assessment.