Gemma Rope, solicitor with Bryant McKinnon is our guest host for this episode. She and Heather welcome psychologist and mediator Anthony Smith to talk about how to make mediation work. With over 25 years and 2000 mediations under his belt, Anthony calls on his experience to provide tips and advice that will help to realise positive outcomes in family law mediation.
Topics and questions covered include:
The show also makes a strong case for why it’s worth making mediation work and avoiding the emotional and financial costs of Court.
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Gemma Rope: Welcome to episode 41. I’m Gemma Rope a solicitor at Bryant McKinnon Lawyers and I’ll be your host for this episode. Benjamin Bryant, who’s usually at the helm of this podcast, is off looking at antiquities in Egypt, which means I get the chance to sit in the hot seat. And I’m joined by our other podcast regular, accredited family law specialist Heather McKinnon.
Gemma Rope: Hello, Heather. How are you coping with the workload with Ben away?
Heather McKinnon: It’s really busy, but then it’s always busy in our job.
Gemma Rope: That’s right. I know what you mean. And somehow the workload always seems even bigger than usual after the summer break. But I’m excited about today’s show because it just might help cut our workload. We’re going to talk about how to make mediation work. And obviously, the more our clients are successful with mediation, the less cases we have to take to court. So we’re all in favour of a positive mediation process.
Gemma Rope: And we’re lucky to have the perfect guest today to help us get to the bottom of how to make mediation work for you. Anthony Smith lives in the Northern Rivers and has been a psychologist for the past 25 years. He holds a master’s in counselling with a particular focus upon couple and family counselling and has worked as a relationship child and family counsellor. During this 25 years he’s worked extensively with separating families as a mediator and family consultant with the family courts and is a registered family dispute resolution provider with the Attorney General’s Department. Anthony has been conducting parenting mediations since the late 1990s and has completed over 2000 mediations, both privately and across a range of services, including New South Wales Legal Aid, Queensland Legal Aid, the Family Courts, Relationships Australia and Interrelate. And we are excited to have Anthony right here in our office recording studio in Coffs Harbour today. So welcome, Anthony, and thank you so much for joining us.
Anthony Smith: It’s great to be here, Gemma. I hope that I can be helpful to your listeners today and they can make the most out of the mediation process.
Gemma Rope: I’m sure your advice is going to make a big difference. Now, just before we get started, I need to remind listeners to share this show with friends and family who are separating or even thinking about separating. We’ve got a large and growing library of episodes on a wide range of subjects with world class experts like Anthony. So please share this resource with anyone you think might benefit. And now let’s get started.
Gemma Rope: Mediation is a term that is used in many ways. From your perspective, Anthony, what are the ways that family law disputes about property or children can be mediated?
Anthony Smith: Yeah, well, it’s actually an incredible growth industry. I remember in the 1990s it was quite a dirty word to be mediating. Then it became something that was kind of considered to be mainstream, and now it’s ordered regularly by the courts. And there’s even a requirement that you have to mediate before you can file in the court, if you want to actually have an application. If you’re thinking about the different styles, the way that I was kind of imagining it was that traditionally mediation is thought about as having three different ways of doing it, which is the style underneath it. Which is either it’s going to be facilitated, which is really somebody just running the process for you. Or it’s going to be evaluative, which is often you’re getting a little bit of expert opinion or some guidance from somebody with a speciality in that field. And more recently, there’s been a real shift towards transformative, which is a lot more relationship based, and somebody who’s going to be trying to resolve the conflict in a way that rebuilds or maintains relationships and a bit more focused on the emotions involved.
Anthony Smith: The other way of thinking about it is that you’re going to be working with a range of different services and different models. So you can either be mediating privately, you can be mediating through community sectors, or you can be doing the more formal process through the legal services like Legal Aid or potentially being ordered through the courts. When it comes to mediation there’s just an endless array of how people do it. You’ve either got their traditional way of face to face, which I’ve got to say, since COVID is almost a bit of a dinosaur, I can’t remember the last time I did a face to face mediation. I don’t know about you Heather.
Heather McKinnon: It’s definitely finished, I think, in most cases. Because as you know, it’s so effective. It’s less stressful, I think, for the clients.
Anthony Smith: Yeah. And I still remember the talk for years and years about shifting to video mediation, and it was always considered this thing that was going to be completely inappropriate and ruin it. And once it went overnight and everyone discovered it’s an incredibly personal way to do it, much more than you imagine and incredibly convenient. It’s actually been really successful. So you’ve got options now. Really, you can be doing it online. Telephone is still there, although I’ve got to say, most people who would be using their phone to do a mediation, it’s easier for them to actually access Zoom or Teams on their mobile. It works better than most desktops in solicitor’s offices, to be honest, and they get a better experience out of it. And also, obviously, you can be doing it jointly or you can be doing it as a shuttle format where you don’t have to interact with the other person. And you can be doing it just with the parents themselves or with solicitors present as well. There’s just such a range.
Heather McKinnon: My observation is, particularly in cases where there’s been some sort of power and control, it’s like watching people totally relax much faster than they did if they knew their spouse was in the building. And I think that that opportunity to work to solve it without smelling the person is something we’ve really got to study more. Because definitely my gut feeling is, people get out of flight and fight much quicker than they did in the old days where they were super concerned about their physical body, when the other person was in close physical proximity. So I’d love to see some research on that.
Anthony Smith: Yeah, definitely. One of the biggest distinctions really is around the idea about whether you’re doing mediation pre-court or you’re doing it while proceedings are underway. And it is becoming more and more common, particularly with the changes in the court and the focus on timely exits from the court. Court ordered mediation is becoming more and more common,
Heather McKinnon: Yeah, and even in the last six months, like we had been used to children’s matters being mediated, But now it’s very clear we can’t get a start in property matters unless we’ve tried to mediate it. So the settlement rate prior to litigation is much higher than it was even two or three years ago.
Gemma Rope: We do know that some couples, unfortunately, do engage in mediation simply just to tick that box so that they can take their matter to the court. But if we just put those couples aside for a minute and consider couples that are genuinely interested in reaching an agreement, what do you think is the best way to approach a mediation?
Anthony Smith: I gave this one a bit of thought, and I even looked online to see what other people were saying. And what I really was wanting to focus on was the idea that I wanted people to approach mediation, that it was a conversation with the other parent. And I wanted them to really take in the idea that they were going to listen. And that they were going to go in with an open mind with a real willingness to understand what it was the other person was trying to say. Because so often, when you go into a conflict or in a dispute and people come to mediation, they’re extremely focused on the outcome. They’re very focused on their position and they’re very focused on what they’re going to achieve. And the hardest thing can often be trying to get them to take a few steps back to find out what it is the conflict is about for the other person, what they’re trying to actually resolve. And then also encourage that person themselves to explain what are the reasons underlying for them why they’re trying to get a particular outcome, what’s going on that they really want to resolve so that that can actually bring everybody into a joint problem solving position. They can take on whatever the problem is themselves rather than it being a battle.
Anthony Smith: So if I was going to say anything, it would really be not to be positional and oppositional. Be willing to listen and to be child focused. And child focused is really, really different from this term that everybody is used to in family law, which is the best interest of the child. Which is the best interest of the child is usually what that parent thinks is the best thing for them. But by child focus, I actually mean go in thinking about what the impacts of this conflict and the impacts of this situation for the child. What is really that child needing in terms of their age and their own relationships and their own dynamics? And trying to keep them at the centre of it. And be thinking about that rather than necessarily what your interests are or what you think the best outcome would be.
Gemma Rope: Do you have any advice for us about choosing a mediator or the best time to start the mediation process.
Anthony Smith: In terms of choosing a mediator, it’s not easy. And it’s something that people are asking me all the time. I don’t necessarily do a lot of private mediations myself, so I do a lot of time talking to people about other mediators, But what I’d say is that you really need to think a little bit about what you are trying to achieve and what your needs are, because there are very different skill sets and very different approaches and a lot of it can come down to: Are you and the other person you’re going to be mediating with actually quite good at communicating and you just really need somebody who’s going to run the show and maintain it on topic and stop it from getting off the rails. Or do you need somebody who has a real counselling background, who’s going to be very helpful in terms of the relationship dynamics? Or do you need somebody who has got a particular speciality area because you’ve got a very young child and you want somebody who’s an expert in child development and what routines are going to be good for a baby or how are you going to deal with separation anxiety for an 18 month old? So you might want somebody with that speciality. Or are you looking at something that is going to need a little bit more legal guidance? You’re looking to relocate to Western Australia and you actually need somebody who’s going to be able to assist you with that.
Anthony Smith: And again, a big part of deciding who the mediator is going to be is comes down to time and factors like money. If you’re going to work with a private mediator, you’re going to be able to do it fairly quickly. But it is going to cost money. If you’re looking at the community sector, it’s far more affordable and very high quality, but there can be some long delays. And also you’ve got to decide, are you wanting it to be somebody who’s going to be able to work with you and your solicitor at the same time, because that’s a different skill set. And a lot of it is about rapport that you build with that person and you’ve got to decide, do you want somebody with a particular skill set? Because the general divide amongst mediators are people who come from a legal background, who’ve done a little bit of training and mediation and. you’re going to get a certain level of people skills from sitting in a class for five days and doing some role plays versus somebody who has got years and years of experience as a counsellor or a social worker or a psychologist. And that’s usually the decision of picking which field you’re going to be heading into, either private and community or that style.
Heather McKinnon: I might just pick up on that thread. So Gemma knows my attitude to researching mediators and what we tend to get are people who think that their skills in legal are going to make them good in that environment. So the classic are judges, who retire from the bench and set up as mediators. It’s a different skill set. And just because you’ve been a judge does not make you a good mediator. So it’s exactly what you’re talking about. And watching some of my colleagues who’ve retired and gone into mediation, a lot of them didn’t last very long because they quickly realised it’s a completely different skill set. And I think that’s something that younger practitioners need to be very aware of. It’s a different profession and what makes a good judicial officer doesn’t necessarily make a good mediator.
Anthony Smith: The reality is, I see a lot of independent children’s lawyers who end up doing legally assisted mediations. And they can be excellent because sometimes that strong hand can be very good in stalemates where it’s very legally bound and caught up. So the skill sets are all different.
Gemma Rope: And we just talked about all the skills you need to be a good mediator. So how does a good mediator help couples come to an agreement?
Anthony Smith: I think a lot of that really is building that bridge. And I was just listening also that question you gave before about the best time, because it really links in. I think that a mediator is going to actually help people have a conversation. And when you’re thinking about the best times to do it and what the skill set is, the way that I think about it is that the majority of people who are co-parenting are having conversations all the time, and they’re resolving conflicts on a daily, weekly basis. Sometimes they might reach a point where they need a mediator. And I’d say if you’re thinking about when, it’s whenever the conversation is becoming difficult. Because I don’t think anyone’s ever said, wow I wish I’d let that simmer and fester longer and had not addressed that. It’s always if only we talked about it earlier, we could have saved the relationship. And so there’ll be some really classic times that are good to mediate when you’ve got some time points coming up, like when children are starting school or they’re entering high school or they’re changing, or if there’s really different needs that are coming up for the kids or they’re expressing some difficulties, or if there’s new relationships and there’s some adjustment periods, that sort of thing. It may well be that you have got kids who are wanting to try different models or something. All these points are good times to start.
Anthony Smith: And when it comes down to how is a mediator going to be assisting, it’s really about helping a party stop and listen and understand what’s going on and move away from that idea about what they’re trying to achieve, to understand what is the interests and the needs underneath and start the problem solving process. And then to prevent, people coming to the brink and escalating, like they often do when you’re having a conversation, and going from a point where you’re just stuck and you walk away at an impasse. It’s actually being able to at that point, the mediator skills going to go: well let’s stop and take a summary and understand what is the difficulty here so you can start to go on to the next stages. There’s a lot of reframing that goes on in mediation. So it’s not just helping people understand, but it’s then also helping them reframe it into a future focus and a problem solving idea and question. That’s probably the real skill and the real difference.
Gemma Rope: And in what ways does it differ from counselling?
Anthony Smith: Yeah. Now, this is actually… You’d be surprised how often people ask that when they ring up, particularly men. They’re very counselling averse. And I’ve got to say, when I started doing mediation in the 1990s, it was really an alternative to family counselling, was family mediation. And then it shifted into family law. The difference really is that counselling is a short process. You’re doing many short sessions over time and often you’re really looking at the past and you’re trying to understand it and you’re exploring that. Mediation is a restructured conversation. It’s a longer session, usually once, maybe a couple of times, whatever is needed. It’s very future focused. And I often used to say to people when I was doing relationship counselling, mediation takes over when a breakdown in communication in a marriage would actually be stopping the conversation. The point where you disagree and you normally go to your corners, is exactly where mediation starts. And the difference is that then it’s future focused. It’s problem solving. There’s a particular issue that needs to be decided even if you don’t agree. Even if you have different views. Even if you’d like to see very different outcomes. You still need to make a decision about that school, for example. You will sit down and you will make a decision that you will both have input on and that you both can live with, that you think is going to be useful thing. That’s really the difference with mediation and counselling.
Gemma Rope: And if the dispute does concern children, what’s your feeling about including the children themselves in the mediation process?
Anthony Smith: I might have a controversial view on this. To me, it’s not a black and white answer. And I’m actually involved with some agencies who are looking at including this a little bit more. And I think it’s very similar to my approach to psychological testing for gun control. I’ve always thought that anybody who wants to own a gun is probably exactly the person who should never own a gun. And often it comes down to exactly the parent who wants to have a child involved is often the parent who should never have a child involved. And really, the criteria for deciding whether or not you would involve a child in mediation almost never has anything to do with that child. And it has to do with the capacity and the maturity of the parent and their ability to actually hear the feedback and integrate it and then not create complications and consequences and impacts for the child.
Anthony Smith: And it’s really a bit of a Goldilocks zone in terms of child inclusive practice and having a child’s views being put there. I spent ten years, more, interviewing kids for family court and reports. And I think I’ve spoken to a few thousand. And for every one or two children who were very excited to come and have their say, there was 100 kids who just felt in the most awkward, awful situation being put upon with their parents conflict and they were stuck. Children often will try to avoid conflict, and they don’t have the emotional capacity to deal with difficult parents who are putting pressure on them. They will often say what they need to say to get out of that conflict. They feel torn loyalties and an enormous amount of pressure. And I’ve often had the very strong view that parents need to be the people making the decisions. They do it based on the understanding of what their children may be wanting or needing, but take them out of that decision making role. And the Goldilocks zone really is older kids, maybe teens on a topic that they really have a strong view about. Something they can have an input on. Often it’s about teenagers wanting to change their arrangements because their social life is changing or what they’re wanting or they’ve got a better way of doing it or ideas are putting forward. Younger children, I think it’s real fraught with danger and it is something that can actually put them in a terrible, terrible bind, particularly if the parents don’t have the capacity to hear and integrate. I’ve had some experiences where I’ve given children’s feedback in mediation and the parent goes, Well, let me give you the rebuttal.
Heather McKinnon: And Anthony, it’s so refreshing because as Gemma knows, as an ICL who was appointed in 1989, it’s exactly my view. And we have a whole generation of lawyers who get little ones in year two and three into their room and talk about their life. Parenting has a meaning. You make decisions for your children. And I wish that more of us who’ve been around for a few decades had a voice at the table about the uncomfortable position that children are put in if they’re brought into the war zone. Absolutely, your wisdom is needed. As we move forward, there’s got to be a balance. But bringing kids into a room with adults who are mediating is not the solution.
Anthony Smith: Yeah. And the general practice would be a child specialist, would speak to the child, gather the views and try to put it in an appropriate way to the parents and then leave the room. Then the mediator conducts the mediation, would be the common way to do it. But it is really the Goldilocks zone, and I see more that are not suitable than are.
Gemma Rope: Now I wanted to ask you, Anthony, is there ever a time when you might recommend against mediation?
Anthony Smith: Yeah, absolutely. And I mean, number one, whenever you’re doing a mediation, any service or private practitioner’s going to be screening for violence and they are going to be screening for power imbalances. I would say that the vast majority of certificates that say a mediation process is unsuitable so people can go to court is based on power imbalances, violence, threatening behaviours. But also realistically there is an enormous number of matters which will find their way to court that aren’t suitable where the other party really isn’t in a state to be doing mediation. And often you’ll find situations where the other parent is having an episode with a mental health condition that means you can’t be negotiating with them. Or the risk factors in terms of the child coming into contact with that home or people in it are just too severe to be discussing. There might be a real risk around continued or ongoing sexual abuse, or they might just be such an extreme level of drug use or the parenting capacity in that home of that parent may be just so compromised that it’s not a safe environment. Situations like that, mediation really isn’t the best option, and that’s when you will be getting an advocate and looking at other options for it.
Gemma Rope: Yeah, so there are exceptions, such as the ones you’ve listed where you don’t have to do mediation before court, but generally you do. And I wanted to ask you, so at this stage, many parents will engage in legally assisted mediation, often through Legal Aid or privately. Can you explain to our listeners what this is and how this might differ from other types of mediation? So just before court?
Anthony Smith: Yeah, it’s much more formal and it’s actually becoming a lot more common now because I know that some of the funding arrangements for organising mediation with groups like Legal Aid are changing, so that it’s easier to get a mediation now. There are certainly plenty of parents who come along to legally assisted mediation without their solicitor, but they have the opportunity to have their solicitor there. If they want, they’ll get legal advice. It is structured a little bit more, but it’s realistically just it’s a process where you’re going to be able to do more problem solving based on the advice from somebody who is experienced with what the court expectations are and what the outcomes in court usually are. And usually the solicitor is going to have a pretty good understanding of what the social science recommendations are around particular topics, and they’re going to be very, very experienced problem solvers. So it’s, in my mind, an excellent process that keeps people that are much better chance of being able to resolve a lot of matters, which would often end in stalemates.
Anthony Smith: And personally, I don’t do a lot of private mediations now without solicitors present, because I think it just became too difficult working with that ongoing scenario when someone would go, “I’m going to get this in court” and they’re going to be continually doing brinksmanship or going to the edge and threatening to walk out or delaying things. When you’ve got your solicitor present, you can actually do a lot more reality testing. You can get a lot more guidance around that. And it’s actually a very, very good process to be dealing with some of the more difficult topics where there may be a level of DV involved. Because you have an advocate and you have an experienced advocate, you can be doing it in a shuttle session and other ways. And this is something that you’re going to be going to court with anyway and you will be working with the solicitor. So there is the capacity to do it. They’ve got the skills to deal with those topics. And Heather, I don’t know about you, but my antidote for most people who are going like “I just want to tick the box and go to court” is to say, great, go to court, go to the duty day yourself. Go and have a look at it, because I think a lot of people have this fantasy that they’re going to have their day in court and the judge is going to come down and give them a condemnation… it’s going to give them a badge. And tell them you are the best parent and really just tear apart the other parent for their poor behaviour. And often, it’s the parent who really thinks court’s going to go well for them, who gets an enormous shock when they discover that it’s their poor behaviours that are often being highlighted. And the other point that I really stress to people is if they go and have a look at a duty day, they’re going to see 20 or 30, 40 different families, depending on the registry, sitting there being a very harassed, harangued, grumpy, impatient judge, just moving them through. Parents aren’t speaking, solicitors are just doing procedural points and they get another date. Nothing happens. Can you put another $5,000 in my trust account? Three months later it comes back. Nothing’s changed. And then when they finally do get their day in court, the other side’s barrister is ripping them apart rather than them getting to show what a terrible parent the other person is. So I think it’s good for people to go and see that court is not this fantasyland they think it is.
Heather McKinnon: And we certainly think that school excursions to watch people being cross-examined are another big reality test. And we often suggest that. It might be useful when you try to make the decision. The other thing I’d say about Legal Aid mediation is, it’s also important for the funder, that is the South Wales Government, because those mediations give a three or four hour overview of who’s realistic, what’s happening and should the taxpayer be funding either party. So there’s a second sort of reason behind that dispute resolution process, which is really important to understand. We’ve got a limited budget as taxpayers to invest, and that process has been very successful at helping families move forward, but also identifying people who may have unrealistic expectations that may not deserve taxpayer funding. So it’s complex. They’re very important parts of the process. And, it is really a credit to the development over the last 20 years of a better way of moving families forward than the old, you know, crash and bash and let’s see what the judge does.
Gemma Rope: So, Anthony, if you have someone like that who just wants to tick a box to get to court, are you saying that, mediation process is not going to work for those cases?
Anthony Smith: I believe that is often has very good outcomes in legally assisted mediation. So you often will find a lot of Legal Aid mediation, somebody is there because they want to tick that box. But you have a very, very productive session. Because the solicitor is able to reality test their fantasies about outcomes in court. And also probably the major difference between, say, a really structured legally assisted mediation is that you will definitely head into a stage of that mediation that is problem solving, that is negotiation. So it relies very heavily on the idea that you will, let’s say, run your arguments, you will put forward what your proposals are. You will be doing some negotiation around that. And then you really will have a point where either you’re doing it as a shuttle moving back and forth, or you’re having very, very specific conversations about, well, what would the arrangements be? And for a lot of people who probably just want to tick the box when they find themselves in that problem solving process, it can actually move them into understanding the benefits of resolving this, particularly if their solicitor is explaining to them that the consequences of not getting an agreement is not particularly going to be useful to them. That kind of process really helps a lot of people who are just wanting to storm off to court, when they can have that put to them by their practitioner that can really help
Gemma Rope: They can keep the control as opposed to putting it in the hands of someone else. I know that that’s something that can be very useful to explain. Now, for my last question, I want to come back to couples that are genuinely interested in finding an agreement, but are just struggling to do that on their own. What would be your top three recommendations on how to ensure that the mediation process actually works?
Anthony Smith: I tried to come up with a clever saying for this. But realistically I just went back to repeating the same things that I was putting forward at the start about what is going to be useful and my experiences in parenting matters. And so it’s very different. And when I was looking online, I found a lot of people on property and that great acronym, “Slay strategy”. And it was all of these ideas on how to really get the best outcome. And so property probably is a very different animal.
Heather McKinnon: It’s not.
Anthony Smith: But when it comes to parenting matters, you aren’t trying to divide up children, you’re really trying to come up with best outcomes that are going to be good. And I always go back to this idea that you are about to have a conversation with a co-parent, and I would say really go in and listen and focus on what’s going to be important. And often the most important thing is maintaining the relationship with this co-parent, if at all possible, because that’s going to be good for your child. It’s going to be good for your relationship with the other parent. And so a lot of it is really sitting down and trying to listen and understand and see if you can create some understanding that develops a joint problem solving approach so that you can both have input. You can both have decision. You can both feel okay about what the outcome is. It’s that same thing as I was saying before, try not to be positional. Try not to be oppositional in terms of just rejecting what’s coming forward. Try to be really open to understanding what they’re trying to achieve and the reasons why. And when you are putting forward your views, try really hard to explain why and what you’re looking to achieve rather than just the outcome. Why that’s important to you. Because often it will open up a lot of other options or a lot of other ideas, and it might get both of you working together towards problem solving.
Gemma Rope: Excellent. Such valuable information and advice, Anthony. Thank you so much for sharing your time and experience with our listeners.
Anthony Smith: You’re very welcome.
Gemma Rope: And Heather, what do you think? Did we do all right without Ben here?
Heather McKinnon: Maybe we should send him an around the world ticket Gem. I think we did really well.
Gemma Rope: Very good.
Gemma Rope: Next month, of course, Ben will be back and we’ll be joined by Dr. Atina Manvelian, a psychologist and clinical scientist at Stony Brook University in New York who has a speciality in adjustment after divorce or break-up. The episode will try to tease out how to have a successful separation, something I think all separating couples ultimately want. It’s going to be a great show. If you have any specific questions for Dr. Manvelian, please send them to familymatters@bryantmckinnon.com.au or message us on Facebook and we’ll try to get answers for you on the show. We’ll put links to any resources mentioned in today’s show and a full transcript in the show notes on our website. And don’t forget, please share this show with family and friends who might benefit. Hope to have your ears next month.