9. Mediation

 

Introduction

  1. 9.1 Mediation is a structured negotiation process in which an independent mediator assists people involved in a dispute to work through the options available to them with a view to reaching an agreement about how to resolve their dispute.
  2. 9.2 While the Commission’s proposed legislative regime will enable people to prevent disputes by talking about and documenting their funeral and burial wishes in binding instructions, it will also establish more grounds on which a person could challenge the authority and decisions of the person with the right to control the deceased’s funeral and burial arrangements. As such, the Commission asked the community about the role of mediation in resolving funeral and burial disputes.
  3. 9.3 In Chapter 8, the Commission discussed the use of mediation and other alternative dispute resolution processes in civil proceedings to encourage parties to reach an agreement before asking a judge, magistrate or member to make a final determination.
  4. 9.4 In this chapter, the Commission considers the role mediation could play in assisting people involved in a funeral and burial dispute to resolve their dispute without adjudication by a court.
  5. 9.5 The Commission is aware of a number of organisations and people that provide low-cost mediation services to parties involved in a funeral and burial dispute.
  6. 9.6 The Dispute Settlement Centre of Victoria (DSCV) provides free mediation services at a range of venues across Victoria, unless the matter is considered unsuitable. Unsuitable matters include those in which one party is afraid of the other.1 While mediation usually commences two weeks after a referral, DSCV informed the Commission that where the parties are willing to attend, mediation could be arranged within a week.2
  7. 9.7 DSCV told the Commission it has an 85 to 87 per cent success rate at resolving disputes and its client satisfaction rate is 85 per cent.3
  8. 9.8 The Commission spoke with faith leaders and funeral directors of different cultural backgrounds who are regularly called on to mediate funeral and burial disputes. While some faith leaders were qualified mediators,4 others did not have, or were not known to have, formal mediation qualifications.5 Nevertheless, they provided numerous anecdotal accounts of disputes in which they had assisted the parties to reach a mutually agreeable outcome.
  9. 9.9 The Victorian Aboriginal Legal Service has also assisted parties to mediate funeral and burial disputes free of charge in the past.

Responses

  1. 9.10 In its consultation paper, the Commission asked community members to comment on the effectiveness and accessibility of low-cost mediation services for people involved in a funeral and burial dispute.

Effectiveness

Value of mediation

  1. 9.11 A number of stakeholders observed that mediation could be beneficial for those involved in a funeral and burial dispute.
  2. 9.12 Anne Sutherland Kelly, a mediator and Senior Fellow, Monash University, stated that where a dispute involves relationship issues, which will often be the case in funeral and burial disputes, mediation is likely to be more suitable than litigation as a means of resolving the dispute. Litigation is necessarily confined to legal issues. The relationship issues often driving these disputes will be outside the scope of the court. Ms Sutherland told the Commission that people often find that ‘the only place they can “have their day in court”, is in mediation’.6
  3. 9.13 Helen Bishop told the Commission about her experience as an alternative dispute resolution practitioner assisting Aboriginal people to resolve funeral and burial disputes. In her opinion, mediation ‘is an opportunity to have a conversation about the problem and to listen, rather than to declare war’.7
  4. 9.14 Ms Bishop shared a case study in which mediation worked well. It involved a dispute between the deceased’s partner and her children with the deceased. While the partner wanted to bury the deceased, her children favoured cremation. The mediation ‘gave participants the opportunity to explore the reasons behind each other’s preferred method of disposal’. After five hours and many breaks, the parties reached an agreement they were satisfied with.8
  5. 9.15 Chris Hall, Chief Executive Officer, Australian Centre for Grief and Bereavement, told the Commission that there was a general consensus among the Centre’s clinicians that access to mediation would be a good thing for people involved in a funeral and burial dispute.9
  6. 9.16 The Cemeteries and Crematoria Association of Victoria told the Commission that many cemetery trusts refer people with burial disputes to DSCV as it seems to be an effective option for people who do not wish to seek legal advice.10 The Geelong Cemeteries Trust also refers people to DSCV for such disputes.11

Drawbacks of mediation

  1. 9.17 Several people and organisations expressed concerns about the use of mediation for funeral and burial disputes.
  2. 9.18 Some stakeholders observed that where there is a power imbalance between the parties, mediation would be ineffective12 and inappropriate.13 Annie Whitlocke, Pastoral
    Carer, Monash Medical Centre, stated that mediating a funeral and burial dispute in this situation would make matters worse.14
  3. 9.19 One person considered that mediation immediately following a death may intensify conflict within families, as emotions are high and it would not allow people to step back and gain perspective on the dispute.15
  4. 9.20 Others considered that mediation would be inappropriate as it may unreasonably delay disposal.16
  5. 9.21 State Trustees expressed the view that, for mediation to be successful, ‘there would need to be enough mediators available with the particular knowledge and skills to enable them appropriately to handle these types of disputes’.17
  6. 9.22 Ms Bishop provided a case study in which mediation did not work. It involved a dispute between the parents of the deceased and the deceased’s former partner. The former partner wanted to ensure her children’s interests in the funeral and burial of their father were protected. Mediators worked with the parties individually and together for almost a month. However, the entrenched positions of the parties were such that the mediators were unable to assist the parties to find a way forward. The matter was ultimately determined by the Supreme Court of Western Australia.

Factors in successful mediation

  1. 9.23 The Commission was told that the intake process, style of mediation and skills of the mediator contribute to the success of mediation.
  2. 9.24 DSCV informed the Commission that its intake process, which includes undertaking an intensive assessment of the suitability of a matter for mediation, is an important part of mediation, accounting for approximately 80 per cent of the time spent on assisting parties to a mediation.18
  3. 9.25 During the intake process dispute assessment officers work with the parties, either by telephone or face-to-face, to establish their positions, work through preliminary issues, and, in some cases, set an agenda for mediation. The Commission was told that the intake process ‘takes the noise out of the dispute’ and encourages parties to focus on solutions.19
  4. 9.26 Christy Hawker, an alternative dispute resolution practitioner who has assisted Aboriginal people involved in funeral and burial disputes, told the Commission that shuttle mediation can be effective in volatile situations.20 In shuttle mediation, parties to a dispute are separated from one another while the mediator moves between them.
  5. 9.27 Rachael Grabovic, Special Counsel, Rigby Cooke Lawyers, reflected on her experience of shuttle mediation in a dispute involving a property claim by an estranged partner against the deceased’s estate. The children of the deceased had refused to allow the partner to attend their father’s funeral or advise her of his place of burial. The shuttle mediation involved both the mediator and lawyers moving between the parties, and the matter was resolved in a day.21
  6. 9.28 DSCV told the Commission that shuttle mediation is not its preferred style of mediation for interpersonal disputes, such as funeral and burial disputes. However, its mediation models are flexible and parallel processes can be run where necessary.22
  7. 9.29 DSCV’s preferred model of mediation is to bring the parties together with two mediators. In its experience, having two mediators helps to reduce the perception that the mediator is biased on account of age, gender or any other identifying feature. It has a strong focus on managing power imbalances between the parties, and the use of support people in the mediation process can help manage risk in this regard.23
  8. 9.30 Anne Sutherland Kelly told the Commission that a specific mediator skillset and style of mediation would be necessary to effectively mediate funeral and burial disputes. According to Ms Sutherland Kelly, it would be preferable for the mediator to facilitate a solution, rather than provide advice. The mediator would need to have restorative skills, as people involved in interpersonal disputes of this kind are likely to be experiencing grief and sometimes trauma. Her impression of DSVC was that it is committed to the facilitative style of mediation that would lend itself well to funeral and burial disputes.24

Accessibility

  1. 9.31 Although private mediators would also be of use to people involved in a funeral and burial dispute, the Commission confined its review to low-cost mediation services as many Victorians would not be able to afford a private mediator. A number of stakeholders reiterated this point, observing that affordable services are needed to enhance accessibility, especially for marginalised people.25
  2. 9.32 In addition, stakeholders highlighted the need for greater awareness of available services and for culturally-appropriate services.

Awareness

  1. 9.33 Several people were unaware of the services provided by DSCV.
  2. 9.34 One person told the Commission that they may have used DSCV to mediate their dispute if they had known of its existence.26
  3. 9.35 Another highlighted the importance of immediate referrals to DSCV, observing that ‘Before you even realise there is a mediation service, [funeral and burial] arrangements have already started taking place.’27
  4. 9.36 The Victorian Bar told the Commission that executors seem to assume they should first litigate and then mediate.28 It suggested that mediation:

could be made more accessible by appointing sessional mediators with experience in estate litigation, and informing the community of their specialist expertise in this area.29

  1. 9.37 The Victorian Bar suggested that participation in mediation could be enhanced by requiring parties to a dispute to provide a certificate of attendance at mediation before filing a funeral and burial dispute proceeding in the court, unless the court ordered otherwise.
  2. 9.38 DSCV observed that its services may be an under-utilised resource for people involved in a funeral and burial dispute. Over the last two years, it has received approximately a dozen initial contacts by clients each year in relation to such disputes.30
  3. 9.39 Material about DSCV’s mediation services is available on its website, and at various community facilities including council buildings, police stations and community legal centres. In addition, DSCV hosts workshops across Victoria to inform people about
    changes to the law and the services it provides.31 As stated in Chapter 8, DSCV also has referral pathways with different organisations, including the Magistrates’ Court
    of Victoria.32

Culturally-appropriate services

  1. 9.40 The Commission heard of the need for culturally-appropriate mediation services that address the needs of Aboriginal, culturally and linguistically diverse and LGBTI communities.
Aboriginal communities
  1. 9.41 Linda Bamblett, Executive Officer, Victorian Aboriginal Community Services Association Ltd, said that some Aboriginal people would be open to having qualified Aboriginal mediators assist them in their dispute. However, others might prefer Elders as mediators or, if the parties were concerned about privacy, non-Aboriginal mediators.33
  2. 9.42 The Victorian Aboriginal Legal Service observed that mainstream mediation services do not always respond effectively to the needs of Aboriginal communities. In its experience, mainstream mediation services struggle to engage Aboriginal people. In addition:

Many services have minimal understanding of issues that may be common in Aboriginal communities, such as cultural and physical dispossession, intergenerational trauma and the belief in the right of self-determination, that can have a significant impact on a participant’s behaviour or ability to engage in judicial or quasi-judicial processes without support.34

  1. 9.43 The Victorian Aboriginal Legal Service told the Commission that it is essential to the success of mediation within Aboriginal communities that there be culturally safe lawyers, community liaison officers and mediators involved in the process. According to the Victorian Aboriginal Legal Service, the use of Aboriginal people in the mediation process would promote self-determination in cultural disputes and promote the open discussion of cultural issues.35 The Victorian Aboriginal Legal Service suggested that a service, administered by the Koori community, be responsible for mediating culturally sensitive matters such as funeral and burial disputes.36
  2. 9.44 DSCV told the Commission that if a Koori mediator is available who is acceptable to both parties, then that mediator will be allocated to the dispute. However, there are situations in which parties do not want someone from their community, or a neutral mediator cannot be identified.37
Culturally and linguistically diverse communities
  1. 9.45 Abay Awasthi, President, Hindu Community Council of Victoria, is a Hindu minister and qualified mediator. He has helped many families work through funeral and burial disputes, and provides his services free of charge.
  2. 9.46 Mr Awasthi said that not all Hindu ministers perform mediation, but that when a minister intervenes and assists in the resolution of a dispute, families generally accept their advice.38
  3. 9.47 Mohamed Mohideen, Vice President, Islamic Council of Victoria, told the Commission that the Council informally mediates funeral and burial disputes. This service is provided for free by Council members, some of whom have had formal mediation training.39
  4. 9.48 In one case, the non-Muslim wife of a deceased Muslim man wanted to cremate her husband in accordance with his wishes. The deceased man’s birth family wanted to bury him in accordance with Islamic tradition. The Council brokered an agreement that allowed it to take possession of the body so the birth family could perform religious rituals, and then return the body to the wife so she could dispose of it as she wished in accordance with the law.40
  5. 9.49 Mr Mohideen did not think that referrals to DSCV for the mediation of funeral and burial disputes that arise within the Islamic community would prove fruitful unless the referral process and mediation service was linked to a mosque.41
  6. 9.50 Two funeral directors who took part in the Commission’s consultation with the Jewish Community Council of Victoria told the Commission that mediating funeral and burial disputes is a significant part of their role. Though there is a formal mediation process that exists within the community, mediation for funeral and burial disputes is generally carried out by funeral directors and rabbis as they are often conducted within hours of a person’s death. The Commission was told that community-based mediation enables the dispute to be understood in the context of Jewish law.42
LGBTI communities
  1. 9.51 Several older feminist lesbians observed that mediation services would only be helpful if they were made available to the bereaved within 24 hours of a person’s death. They told the Commission that grief stricken birth families often make funeral and burial arrangements quickly as a coping mechanism, and exclude lesbian partners and friends in the process.43
  2. 9.52 During a consultation with Transgender Victoria, participants told the Commission that mediation would be difficult where the birth family had not accepted the deceased’s sexual orientation, gender identity or intersex status. Where the deceased had not openly disclosed their sexual orientation, gender identity or intersex status, mediation was deemed impossible.44
  3. 9.53 The participants believed that compelling funeral directors to undergo training to increase their understanding of issues that affect LGBTI communities would be beneficial. They noted that Transgender Victoria is funded by the federal government to provide LGBTI training to aged care providers, and that aged care providers are required to undergo the training to maintain their accreditation. The participants observed that a similar requirement could be imposed on funeral directors.45

Conclusions

  1. 9.54 The Commission concludes that affordable, timely and culturally-appropriate mediation services run by independent mediators could be of great assistance to people involved in funeral and burial disputes.
  2. 9.55 The Commission acknowledges the concerns raised regarding the ineffectiveness of mediation in certain circumstances. However, funeral and burial disputes are not unique with regard to the risk of a power imbalance between participants, nor with regard to their emotionally charged nature. Disputes of this kind are comparable to some family law disputes in the federal family law jurisdiction, where alternative dispute resolution and mediation is encouraged and promoted.
  3. 9.56 Unlike in federal family law proceedings,46 the Commission does not consider that the proposed Act should impose a requirement on parties to make a genuine effort to resolve a dispute before filing proceedings. Given the short time frame within which most funeral and burial disputes will need to be resolved, and the time it takes for mediation to be held, a requirement that parties attend mediation as a prerequisite to filing proceedings in the Magistrates’ Court would create a barrier to accessing the court for the urgent resolution of a dispute.
  4. 9.57 However, mediation is an important form of alternative dispute resolution that could be effective in resolving funeral and burial disputes that go to court. During the course of any court proceedings, it is open to the court to refer parties to mediation.47 For example, litigation regarding where a person’s ashes are to be kept or scattered may not require the same level of urgency and could be suitable for referral to mediation.
  5. 9.58 Mediation could also occur outside of any court process. For this form of alternative dispute resolution to be effectively utilised, the Commission considers that there is a need to raise public awareness about the suitability of DSCV’s mediation services for funeral and burial disputes. DSCV is well placed to run public awareness campaigns to this end, including by publishing material and conducting educational seminars specific to the issue.
  6. 9.59 In particular, DSCV should raise awareness among service providers who are likely to come into contact with people involved in a funeral and burial dispute, including health care professionals who assist people with their end-of-life choices, funeral directors and community lawyers. It should also aim to reach Aboriginal, culturally and linguistically diverse and LGBTI community groups.
  7. 9.60 The Commission shares the view that the success of mediation services for Aboriginal people depends on the service provider’s capacity to understand the broader historical context in which it is providing its services and to create a safe environment in which mediation can take place.
  8. 9.61 DSCV has sought to address the needs of Aboriginal participants by providing a ‘culturally appropriate service that respects rights to freedom of thoughts, beliefs, religion and cultural expression’ and ‘complies with industry national standards’.48 The service is designed to help Aboriginal people manage conflict within their own communities.49
  9. 9.62 There will always be a place for community-based mediation. The Commission commends the faith leaders and funeral directors it consulted with who have provided valuable support to their fellow community members involved in funeral and burial disputes.

Recommendation

  1. 25 The Dispute Settlement Centre of Victoria should take steps to enhance public awareness of its ability to mediate funeral and burial disputes in an affordable, timely and culturally-appropriate manner, including by conducting awareness raising campaigns among relevant service providers and Victoria’s Aboriginal, culturally and linguistically diverse and LGBTI communities.

 


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