For many people going through separation, the idea of mediation or family dispute resolution can feel daunting. What actually happens in the room? Will you have to face your former partner? What if they dominate the conversation, refuse to compromise, or you become overwhelmed?
In this episode, Ben and Heather are joined by Alison Osmand from Osmand Family Mediation to explain what mediation is, how it works and what separating couples can expect from the process. Alison brings more than 30 years of experience in family law, including time as a Judicial Registrar and Senior Judicial Registrar in the Federal Circuit and Family Court of Australia.
Together, they take some of the mystery out of mediation and family dispute resolution, and discuss how preparation, structure and the right support can help people work towards practical outcomes. Topics covered include:
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Ben Bryant: Welcome to the Family Matters Show podcast, where we answer the tough questions about divorce and separation, empowering you to make better decisions for yourself and your family. Hello everyone. Welcome to today’s episode. I’m your host, Benjamin Bryant from Bryant McKinnon Lawyers.
Ben Bryant: For many people going through separation, words like mediation or family dispute resolution sound intimidating, raising doubts and questions. What’s involved? What will it be like? Is it required by law? Today, we’re going to take some of the mystery out of mediation after separation by explaining what it is, how it works and what you can expect if you ask to participate. To help us unpack this topic, I’m joined by my partner and specialist family lawyer, Heather McKinnon, and our guest, Alison Osmand from Osmand Family Mediation.
Ben Bryant: Alison brings more than 30 years experience in family law. Before establishing Osmand Family Mediation, she served as both a judicial registrar and senior judicial registrar in the Federal Circuit and Family Court of Australia, giving her extensive experience helping families resolve disputes today. Alison works with separating couples to navigate issues and disputes in a calm, structured environment, helping them find practical solutions while preserving dignity and respect throughout the process. Whether you’re preparing for a private mediation session or a court ordered family dispute resolution, we hope today’s conversation leaves you feeling more informed and more confident about what to expect.
Ben Bryant: Let’s get started. Hi, Alison, thanks for being here. Alison. Most people have heard the word mediation but have never experienced it. What is mediation and what role does it play in helping people resolve disputes?
Alison Osmand: Mediation is really a dispute resolution process. It’s where an impartial third party, a trained mediator, convenes a meeting to work through the issues in dispute. The mediator, as I say, is impartial. They don’t impose a decision and they’re not meant to give advice.
Ben Bryant: I think Alison, like Heather and I, were always in the prism of family law, aren’t we? So we forget there’s other forms of mediations out there. But, you know, for the people that are listening there may be other areas where there’s mediations happening. I know when I was doing my mediation training, Heather, we were doing neighborhood disputes and civil actions. I know some judges mediate some sporting competitions and all sorts of things.
Heather McKinnon: You could be in the Middle East trying to solve the problems over there. But mediation, yeah, is conflict resolution.
Ben Bryant: That’s right. And it helps so many people, all sorts of disputes. And Heather, how is mediation used to resolve the family law disputes?
Heather McKinnon: So we have two main areas of conflict. When a family breaks down one’s what do we do with the kids. The other one’s what do we do with the money? So we use mediation in both those fields. In relation to children, we have an even more nuanced method of mediation. And Alison will probably talk to us about it. It’s called family dispute resolution. It’s a special qualification that people obtained who are interested in mediating in that world of children’s rights, property mediations as it sounds, it’s how do we get people to sort out their property when their relationship ends? The only other thing that confuses people is that mediation happens at various points along the path. So a lot of people mediate even before they separate, because they’re trying to work out who’s going to stay in the house, who’s going to move out, what’s going to happen when the kids realise that we’ve got two different houses, then we might mediate once separations occurred, then if you can’t fix it, you might end up starting a court application. And guess what? The judge is going to send you back for more mediation.
Ben Bryant: And in family law context, is mediation compulsory?
Heather McKinnon: It is. In Australia we’ve had compulsory mediation in children’s matters for years. Property mediations in the last couple of years, Parliament has mandated that you can’t go to court in relation to property unless you try and mediate before. So there’s been a huge policy shift that’s imposed by Parliament that really has fast tracked the use of this model of dispute resolution over the old style litigation.
Ben Bryant: And you were talking about along the pathway. I was thinking when we saw this question about mediation and dispute resolution generally, what that might look like in a Family Law context. And there’s voluntary mediations, involuntary mediations, there’s things called conciliation conferences, there’s child dispute conferences, there’s litigation conferences. There’s a lot of mediation opportunity in family law, isn’t there?
Heather McKinnon: Yeah, there’s a big menu and the different parts of the journey, there’ll be different ones that you’re ordered to attend. But the model that Alison’s going to teach us about today is basically universal in terms of what it sets out to achieve.
Ben Bryant: Sure. And many people, as you said, Heather, have heard the term family dispute resolution, but don’t really know what it means. As an accredited family dispute resolution practitioner myself, perhaps I’ll briefly explain it. FDR is a specialised form of mediation used primarily to help parents resolve disputes about their children. In most cases, it’s something the law requires parents to attempt before going to court. Of course, unless there’s some exceptions, FDR have specialised training on a child focused practice. And also, I think it’s fair to say that as an FDP, you’re always looking about the suitability and safety of mediation. So always assessing suitability of the mediation process before, during and after a mediation event. Also, the FDP can issue what everyone knows as the section 60 certificate, which is essentially says it’s the ticket that says you’ve tried mediation on the other side, didn’t show up, and you can essentially go to court without trying an FDR event for another 12 months. Heather, why does the family law system play such a strong emphasis on FDR?
Heather McKinnon: We’ve had now longitudinal studies in the UK, the US, Canada and here that have happened over the last 50 or 60 years. The outcome for children and for the husband and wife or the partners we know is much better if they reach the decision themselves with the assistance of a mediator, rather than having a judge imposed decision. So it’s very clear that people who can move through conflict and resolve it themselves have a much better chance in the long term of cooperating over the lifetime of their kids. And we always use the example of, you know, you’ve got a you’re talking about little toddlers at two and five, but you don’t think about what happens when they get married or whether when they graduate from uni. It’s much better over the lifetime of a human to have parents who have reached decisions about care without it being imposed. So we learnt that. And mediation is the model by which we achieve that. So for anyone who’s doubtful about it, we have so much research on the outcomes for families. You have to give it a really good shot because it’s much a better way of moving forward than a judge imposed decision.
Ben Bryant: Sure. And there’s a lot of resources out there, Heather, in respect to the impact of conflict on children. And we’ve certainly discussed that a lot in this podcast. Alison, how does family dispute resolution differ from other types of mediation?
Alison Osmand: I think the key difference, Ben, is with family dispute resolution, the family dispute resolution practitioner is doing that suitability for assessment and really hones into what might be key areas of concern in terms of suitability, things like serious family violence, potential for coercive or controlling behaviour. And I think the other issue is that the family dispute resolution practitioner often provides information for parties to assist them, and also might have a stronger role in guiding the discussion process and some family dispute resolution practitioners actually prepare parenting plans. So the mediator in a mediation model takes a different approach to the family dispute resolution practitioner. And of course, the mediator in mediation model in family law world might have a wider brief in terms of property matters, child support, spousal maintenance, those sorts of issues. So they’re the key sort of differences that I’m seeing between mediation in family law world and family dispute resolution.
Ben Bryant: One thing I found conducting family dispute resolution is that people usually come into the process feeling a little apprehensive. They’re not quite sure what the process looks like or if they’ll be forced to agree to something. Alison, when someone contacts you for mediation, what happens before the parties actually sit down together?
Speaker 4: One of the things that I often do is I have an obligation free telephone call with a party. Sometimes a lawyer will provide that party with my phone number. And so I’ll just have a bit of a chat to them about what my process looks like. But one of the things that I do every mediation is have a pre mediation appointment. The reason why I do that, Ben, is because I want people going into the process understanding what it looks like, rather like having an operation really, if you understand what’s going to happen to you, hopefully that will make you feel less apprehensive. I am surprised sometimes by what people don’t know about the process or has not been explained to them by their lawyers, and so I like to be able to talk through with them what the day will look like, the way the day will be structured. I do checks and balances around their fears if their safety issues are there. Family violence orders? I like to get an understanding of the history of the parties negotiations. And so it gives me a feel for who they are as people. And hopefully I’m building some rapport with them as we’re going along and lowering the apprehension level. This is not going to be a bad experience, that this is going to be a positive experience.
Ben Bryant: And Alison, this question is what happens during mediation. But you could spend hours explaining that or trying to. What is your process?
Alison Osmand: Well, I suppose it depends, Ben, because I like to structure my mediations around the needs of the parties. When some parties simply cannot be in the one room together, be it in person or virtual. And that’s an important distinction that we probably need to make. I think one of the beauties about mediation, and also one of the positives of the post Covid world, is that we can do so much via Zoom, and so a lot will depend on how I’m conducting the mediation, am I? I’m in a Zoom conference, or am I an in-person situation with the parties? Some parties will say to me, they’re too frightened, they’re too apprehensive. They don’t want to be in the same virtual room. So that will determine what the day looks like. But generally speaking, there’s a meeting at the beginning, either with the parties in the one room, and if they have their lawyers, their lawyers, and there’s an exploration about what the issues are, some parties like to make an opening statement, sometimes through their lawyers, about what their concerns are and what they’re trying to achieve. And then what happens is we’ll often work through very practical issues, such as, why doesn’t everybody agree to what’s on this balance sheet? Why can’t we get agreement about what the assets and liabilities look like and sort of unpick and explore the issues for discussion? And then in my process, I tend to break people into separate rooms.
Alison Osmand: So I can then go and meet with them separately, have private discussions with them separately, and then the negotiation process will start after that. So that’s a very truncated summary of of what you do in a whole day. And in my process, if I’m working with people for a day, I encourage them to be making their first offers before lunchtime. And I do that because people get really tired. People can get a bit tired during the day and a bit cranky, you know, towards the end of the day. And so I like people to be starting that process before lunch, and also because it’s a considered process and people need to be carefully considering each other’s offers, comparing what they might look like mathematically, if it’s about property and understanding them. That’s my process.
Ben Bryant: Thank you for that very practical tip, Alison. That was great. And part of our roles as solicitors, assisting parties going through the mediation process is to manage their expectations. That’s what we’re trying to do before and that’s what we’re trying to do the mediation. So those kind of outlining of what a person can expect during the mediation process is really useful. Thank you. People often worry about the difficult scenarios and play a series of what ifs through their minds before mediation or family dispute resolution. Let’s work through some of the common ones now. Alison, what if my former partner dominates the conversation?
Alison Osmand: That’s a really key one, and that’s one of the most common comments people make, because some people have had that lived experience of their partner dominating the conversation. So I think a skilled mediator can really manage that situation. You can lay down some ground rules at the beginning about we don’t speak over the top of each other. We speak one at a time. I’ve recently actually given people a set time to speak as a way of not controlling the conversation, but managing difficult conversations, and that actually worked. And if it’s the case that if the conversation is really not working because one party is dominating the conversation, it might be that you do need to revert to a shuttle situation and that the mediator goes between the parties, particularly if one party is becoming frustrated or distressed. You don’t want that situation escalating.
Ben Bryant: I think I reassure clients, Alison, by saying mediation is not where we just put you in a garage and close the door and say, sort it out amongst yourselves. It’s a very structured process. It’s a structured conversation. And at all times you might feel uncomfortable. It might be awkward, but you will be safe. You’ll have the opportunity to have what you say heard, and you’ll have the opportunity to hear what the other person says. What if a client becomes emotional or upset during the mediation process?
Alison Osmand: Emotions and being upset is actually okay. Emotions are okay. I am very happy to support people and give them the space to show their feelings and how they’re feeling about their concerns. Often in the mediation appointment, people will talk to me about what it will look like for them to be upset and what they will need if they are becoming too upset, the fact that they might need to go off screen, if we’re doing it virtually in the mediation appointment. They’ll give me a signal if they need to stop talking. There are ways, again, Ben, of managing all of this, but emotion per se, I don’t think is a bad thing.
Ben Bryant: We get people all the time, which says he or she is not going to do anything. This is no point in doing mediation. What can you do if the other person simply refuses to compromise?
Alison Osmand: That’s sometimes when I think the use of separate sessions are really important, and sometimes it might mean that the mediator will need to spend more time with a party who’s dug in. I often describe it as people by 3:00 in the afternoon, dug the hole in the ground and shoved the flag in it. And they’re not going anywhere. And often I will spend more time with that person to unpack. What are the roadblocks? Why is it that you can’t make that next step? Why can’t you make that next counter-offer? I think separate sessions are very useful. When parties hit a wall and one party appears not to be prepared to compromise when a compromise might actually bring the matter to an end.
Ben Bryant: Again, thank you for that practical insight, Alison. A successful mediation or family dispute resolution is going to save people from emotional and financial cost of going to court. So obviously it’s in everyone’s best interest for mediation to be successful. Alison, what do you say are the secrets to success?
Alison Osmand: Preparation, preparation, preparation, preparation. I think particularly in Family Law world, which is a bit of a document driven experience, a lot of people will often say to me in mediation in front of their lawyers, I have a box of documents at home about that. And I often think to myself, that’s great. That box of documents is at home. So I think preparation is really important. I think getting legal advice, if people can afford to do so before the mediation is key, because that’s where the lawyer will be able to guide people. If they’re going to do the mediation in person, that’s where the lawyer will be able to guide people about what they need to do to prepare. And I think mindset is essential. This is a process of resolution. You are there to resolve the dispute. That’s what the focus needs to be. Perhaps not taking too many past grievances into the process with you, if that’s possible. And I know that’s one of the hardest things there. The key things for me and a good night’s rest the night before. If you can do that as well along mediation can can feel like a bit like a marathon. But yeah, they’re the things that I think are key.
Ben Bryant: Yeah. And again, I encourage people as well, Alison, in terms of getting to the intention, what is it that we’re here to achieve today? What is it that we want? And then going with the intention, what is it that you want realising and having an understanding of what is your position is everyone knows what their position is quite clearly, especially like things like with a property mediation, we have case outline documents, we have all sorts of things which set out what the position is. So we can talk about percentages and adjustments and all sorts of things. But getting behind the position to the interests, why is it that you want 10%? Why is it that you feel that you need the house, getting to that kind of stuff, the real stuff, and having those questions as soon as possible, I think is a great preparation. I just want to talk a bit now about what happens if mediation is unsuccessful in resolving a dispute. Heather, if family dispute resolution fails to reach a successful outcome on a parenting issue, what happens next?
Heather McKinnon: Well, at that stage, parents usually make an application to the court because they’ve reached a roadblock and there’s no other way of getting a solution. The good news is, once that starts, we bring in the child consultants, the social scientists that we’ve talked about in other podcasts who can give some expert help to parents about what’s best for their particular children. And once that social science is available, we often find that we convene another mediation. They can actually get somewhere because they’ve now got a very objective overview as to each child and what their needs are. So I would say to people, don’t give up on the process, but you might need some more information from an expert to help you as parents understand what the needs of each of your children are.
Ben Bryant: So, just because this mediation was not successful doesn’t mean the next one won’t be. Alison, what about a property mediation? If the parties don’t reach an agreement on the day? Are there other pathways to resolution then?
Alison Osmand: I often encourage people to consider a second mediation because as an alternative to actually going to court. So if parties have got to a point where they’re close, might need a bit more time, they might need to reflect a little. I’ll encourage them to perhaps, say, have another half day rather than another full day. Parties are also required to, certainly in the court context, to make written offers to each other after the mediation process. Often parties will get to a point at the end of mediation and someone will have made the last offer. I will often encourage parties to leave that offer open for a period of time. It’s open for a couple of days for everybody to go home and think about it and consider whether they, you know, go back and accept that last offer that was made. Unfortunately, though, you know, if parties don’t come back to mediation, if they don’t accept that last offer, they can continue to negotiate, I suppose, between themselves. But court ultimately might be where the parties find themselves if they can’t resolve it.
Ben Bryant: And as we know, Alison, just because you’re at court doesn’t mean to say you’re not going to be mediating. That’s definitely one of the things you’ll be doing at court.
Alison Osmand: Exactly.
Ben Bryant: Thank you both. I just wanted to end this episode by asking you the same question, if I may. Alison, we’ll start with you. If someone listening today has their first mediation next week and they’re feeling nervous, what’s the one piece of advice you’d like to leave them with?
Alison Osmand: Just give it a go.
Ben Bryant: Great. And also preparation.
Alison Osmand: Preparation. Preparation. Preparation.
Ben Bryant: Heather. Sang question one piece of advice you’d like to leave them with?
Heather McKinnon: I was meeting with a first responder who works in very stressful rescue situations, and he said, breathe. I say to my clients, look, breathing is critical. And if you’re going into a witness box or you’re going into a mediation or you’re going into court, get some help on how to breathe. And the other thing is eat lunch. If you’re working all day with someone like Alison, you’re going to be really stretched and the last thing you want is your sugar spikes because people get really, really aggro.
Ben Bryant: Yeah. Look, we’ve got all this practical advice we’re preparing. We’re getting our intention in order. We’re making offers by two. We’re breathing so many things that we’re doing. It’s great. Great advice. Well, thank you so much.
Alison Osmand: Thanks for having me.
Ben Bryant: And that brings us to the end of today’s episode. A sincere thank you to Alison Osmand from Osmand Family Mediation for helping us understand what mediation after separation is really like, and for explaining how the process can help families work towards practical and respectful outcomes. And thank you as always, to Heather McKinnon for sharing her experience and helping us understand how mediation and family dispute resolution fit within the broader family law system. We hope today’s conversation has helped demystify mediation in general and family dispute resolution in particular, giving you greater confidence about what lies ahead.
If you know someone who could benefit from hearing this conversation, we’d encourage you to share it with them. It may help ease some of the uncertainty that they’re feeling. Remember, this is just one episode in our growing library of practical conversations designed to help people navigate separation with greater confidence and clarity. You can find all episodes of the Family Matters show at Bryant mckinnon.com.au, or by searching for the Family Matters show wherever you get your podcasts. Until next time, thanks for listening. The information provided on this podcast is general in nature and not a substitute for personal legal advice. We recommend you consult with an accredited family law specialist.