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E17: Family Law Mediation

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In this episode we talk about mediation: one of the biggest cost savers in the entire family law process.  A successful mediation can save you the emotional and financial cost of going to court.

To get the full story on mediation, Ben and Heather spoke to eminent mediator Philip Theobold.  An accredited Family Law Arbitrator, Family Dispute Resolutions Practitioner and experienced Family Law Mediator, Philip has helped many of our clients to successfully reach agreement.

Topics covered in this in this episode include:

  • The meaning of mediation.
  • The difference between mediation and Family Dispute Resolution.
  • What happens in a mediation session.
  • Confidentiality in mediation.
  • Readiness for mediation.
  • Court-ordered mediation.
  • Choosing a mediator.
  • Bringing a lawyer or support person to mediation.

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Full Episode Transcript

Welcome to Episode 17 of The Family Matters Show

Benjamin Bryant: Hello, everyone. Benjamin Bryant here from Bryant McKinnon Lawyers welcoming you back to The Family Matters Show podcast. I can’t quite believe we’ve reached Episode 17, but here we are. And today we are going to talk about one of the biggest potential cost savers in the family law process: mediation. As usual, my business partner and family law specialist Heather McKinnon is joining me for this discussion. How are you, Heather?

Heather McKinnon: I’m well Ben. And it’s good to be talking about mediation. I’ve just spent a week in the family court and I wouldn’t want people to have to go through that process. Mediation is definitely the best way to deal with disputes, if you can.

Benjamin Bryant: And I absolutely agree with that, Heather. And there’s no question that mediation has saved many of our clients from the financial and emotional costs of going to court. And I’m very excited to say that today we are joined by a real subject matter expert. Philip Theobald is an accredited family law arbitrator, family dispute resolution practitioner and experienced family law mediator. He is the chair of the Australian Institute of Family Law Arbitrators and Mediators and in our experience, is a very gifted mediator who has helped many of our clients reach agreements. We had hoped to have Philip sitting with us to record today, but thanks to state covid-19 closures he will be talking to us from his home in Tasmania. Welcome to the show, Philip.

Philip Theobold: Thanks, Ben. I think, Ben, I have to correct one thing in your introduction. I’m no longer the chair of the Australian Institute of Family Law Arbitrators and Mediators, that job’s gone to a good friend of mine, Alan Davies, in the West.

Benjamin Bryant: Ok, excellent. Well, thank you, Philip. Are we ready to go ahead?

Philip Theobold: Yeah, I’m ready and excited to talk about mediation any time Ben.

Benjamin Bryant: Perfect.

What does mediation mean in a family law context and is family dispute resolutions the same thing?

Benjamin Bryant: People use the term mediation to mean different things. We also hear the term family dispute resolution so we can be clear from the outset Philip, what does the term mediation mean in a family law context? And is family dispute resolution different to mediation or just another word for the same thing?

Philip Theobold: Ben, it’s really just another word for the same thing. There are differences in that the format you have to use in the process of family dispute resolution is set by the federal government, and that means that there are some things you have to do when you’re conducting mediation under that heading. But mediation generally is just a matter of somebody helping people reach a compromise, not telling them what to do, but assisting them to reach their own settlement. That’s the very broad definition, assisted negotiation. Experts in the field or academics will define it in much more elaborate terms, but it’s really just assisted negotiation.

What happens in a mediation session?

Benjamin Bryant: And so, Philip, what actually happens in the mediation session, how do you help these couples try and resolve disputes?

Philip Theobold: I use a three phase method. I talk to each couple individually first, each member of the couple individually Find out a bit about them, whether they’re comfortable being in the same room or on the same Zoom platform as their partner. Talk about the advantages and disadvantages of doing that. I usually ask them why the matter hasn’t settled, because that enables them to tell me what they see as the difficulty in reaching a settlement.

Philip Theobold: Then we move usually to a joint session where each party , usually through their lawyers, tells me their present position. And the important part of this session is that they tell the other party their present position and they hear back from the other party, their position, so that everybody starts off knowing how each one of them feels about the matter and usually what they want to get out of it.

Philip Theobold: Then I try to sort of reframe what they want to do into more neutral terms and set about working our way through it. If they’re talking about property, we might talk about individual items of property first and establish the values of them. Establish who wants to keep what. If we’re talking about children, then we’ll usually set a bit of an agenda as to what are the important things and what of the less important things that they want to reach agreement about. We may break into individual meetings with the parties to talk privately in an effort to develop some options about settlement. Then sometimes we come back together as a joint session or I end up moving between couples with ideas for settlement. Sometimes we have a final session together to run over what’s been agreed other times, depending on the mood of the parties, they might just individually leave with or without a settlement. But I must say that in the majority of cases, a settlement is reached.

Are mediations confidential?

Benjamin Bryant: And Philip, so there’s two important things, there is really communication and the exchange of information, I guess people have to feel that they’re in a safe place to do that. Which brings about the issue of confidentiality. Are mediations confidential. And what if one party has information that they might want to share with you as the mediator, but they don’t want to necessarily let the ex-partner know?

Philip Theobold: The individual sessions are totally confidential, and I usually tell people that I will only relay from an individual private session to the other party, only if they’ve told me to do it. As far as the overall mediation is concerned, they’re settlement negotiations, they’re covered by the without prejudice doctrine. If they are a private mediation, they sign my mediation agreement, which acknowledges that what takes place is totally confidential. And also provides an agreement from the parties that they won’t subpoena me to attend court if the matter doesn’t settle. If only it was a family dispute resolution matter, then the Family Law Act actually provides them with the protection of confidentiality.

Heather McKinnon: I think it’s important to give people practical examples of the sort of information that people might share with you in those confidential sessions that helps you understand how you might help them move forward. Can you think of common examples of where people will spill their guts, if you like, and tell you, look, I don’t want the other party to know this, but I want you to know. Are there things that come to mind that often are shared with you?

Philip Theobold: In property mediations people often share what they want to do with the money that is going to be divided up. And they don’t want the other party to know because it’s part of getting on with a new life. In children’s matter you often have parents tell you things that the children have told them about the other party and they say, please don’t tell mum or dad because they’ll be upset. And of course I’ve got no idea of knowing it, and neither of they, whether what they are being told by their child is correct. But that happens quite a lot.

Philip Theobold: And Phil in family law, we know that mediation can occur sometimes before court and sometimes it’s required by the court. At what point and on what issues does a court require couples to mediate?

Philip Theobold: At the moment, the court requires couples to mediate property matters, either directly through the court registrar or through an outside agency, before they are listed for hearing. In terms of children’s matters, the court seems to use the idea of mediation as depending on the couple’s circumstances and what’s talked about in the family report, that the courts already got in front of it People have to mediate before a parenting matter can be listed in court for hearing. And that’s when they use quite often the family relationship centre. Who can give them a certificate that says they’ve been to mediation, haven’t been able to reach agreement, and if they’ve got that certificate, they could then file an application in the court.

Benjamin Bryant: And so that Section 60R certificate is relevant to parenting matters, not property matters?

Philip Theobold: That’s right, it’s only relevant to parenting matters.

Does a court ordered mediation work?

Benjamin Bryant: And one of the premises of mediation is, people willingly approaching mediation and also, going with an open mind or with a genuine attempt to resolve the matter. Some people might think that when a mediation is forced by the court, that it’s perhaps at cross purposes, and doesn’t achieve that. In your experience does a court ordered mediation work.

Philip Theobold: Yes, they do Ben In a court ordered mediation, I frequently have both parties tell me privately that the other one will not settle because they want to go to court. And they look a bit amazed when you tell them. “Oh, I’ve just heard that from your partner about you.” But that certainly happens. I think people are anxious to get matters resolved. People are very conscious of the delays in the court system. And people who’ve separated usually want to get on with their new life and mediation offers them a way to do that if they can reach agreement.

Heather McKinnon: And Philip, it’s certainly the case in my observation that having you there as a third person who’s objective and not in the conflict is a way of people sharing their fears and concerns, which actually helps them feel more confident then to negotiate.That role of a wise listener, I think, is one of the reasons that you’re so successful. It’s really interesting to watch when they realise you’re not hired by anyone, you’re just there to help them.

Philip Theobold: Heather, I try nowadays to make it very clear right from the start that I’m not there to judge or to tell people who’s telling the truth and who’s not. I’m there to help. I’m also conscious and sometimes remind people that you never learn anything by talking, and listening is the key to it.

Heather McKinnon: Absolutely.

Are there advantages to mediating before court?

Benjamin Bryant: And Heather, I might ask you, in your experience with property matters, do you think there’s advantages to perhaps mediating before court or actually filing with the court, getting in the system and doing the mediation at court?

Heather McKinnon: It really depends on the position that each party is in the resolution of grief. So what we find is that some people initiate separation from their partners and the other partner is in absolute shock. So they take a while to catch up. Problem is that one party might want to move much faster than the other. But if people who have, say, been married for twenty five years, they’ve been separated for over a year, and then they decide they’ll mediate before court. Often they are highly successful because they’ve had enough time to recover from the shock and they’re focused on their futures. The court mediation order is useful in cases where one party is still dragging the chain, if you like. They’ve put their head in the sand. They haven’t agreed to come to any sort of meeting. And so we use the court process then to get the recalcitrant partner to the mediating table. And Philip’s role then is as that senior listener to help the person who doesn’t want to solve the problem, to relax a bit and get them to realise that their whole approach to life will improve if they can look forward rather than staying stuck. So horses for courses you usually know within a few months of being involved in a case whether the matter’s sensible to mediate without the court behind it or whether or not you need to get the court to get the other person to the table.

When does it make sense to invest in a mediator?

Benjamin Bryant: And Philip, in your experience, when does it make sense to invest in a mediator?

Philip Theobold: Ben, I was just listening to Heather’s answer and thinking it’s so variable from couple to couple. You really have to reach the situation where you’re confident that both parties are emotionally ready to settle. When people reach that stage, they’re usually also eager to settle. I find talking to both the solicitors that they’ve got is a great way of finding out whether people are ready to settle. Certainly if they’re not, then it’s a waste of time and I quite frequently have people ring me and say, can I organise a mediation or I’ll say, “Have you talked to your partner about it?” And they say, “Oh, no, no. If I organise it, she’ll come or he’ll come.” And I never hear anything more from them. It’s because the other party doesn’t want to be dragooned into a settlement negotiation or they’re simply not ready for it.

What’s the difference between an independent mediator and centres like Family Relationship Centres or Interrelate?

Benjamin Bryant: Our listeners would hear that there is a mediator like yourself or there’s centres like the Family Relationship Centre or Interrelate. What are the differences between those mediators or the mediation agencies like the FRC or private mediation?

Philip Theobold: I think the big differences are that the FRCs and people like Interrelate are heavily geared towards resolving parenting disputes They really spend a lot of time with people. They’re patient, they listen, they sometimes even have the children in a separate session to talk to them. And I think they do a great job.

Philip Theobold: But when it comes to property where people are talking about their legal rights, it’s probably more efficient to have a legally trained mediator there to talk with them, because they keep an eye on what’s going on. They can see whether or not a projected settlement is likely to be approved by the court and also, more importantly, whether a projected settlement is likely to stick. Because you’ve got to remember that in family law, it’s only when the court makes an order or the parties enter into a binding financial agreement that the settlement they’ve reached in mediation is binding.

Heather McKinnon: Phil that’s a really good way of separating the skill base out, because obviously when we’re rearranging property and we’re shifting assets from one spouse to another, or out of companies and trusts, we’ve got a whole lot of things that we have to be trained in: tax ramifications, legal structures, third party rights. And it is in those cases pretty important to have a mediator who actually has the second qualification as a lawyer who can help the parties document the deal, because that’s really half the disputes resolution is in getting a structure that’s going to help the people move on and pass through all the hoops that it has to to be binding in the system. And it’s very hard to do that with property pools that have assets like superannuation in them, if you don’t have a mediator who understands how to structure and drafts the terms.

Philip Theobold: Yeah, that’s right.

Is there recourse if you are displeased with your mediation?

Benjamin Bryant: And Philip, unfortunately, mediations don’t have a 100 percent success rate. And so sometimes it’s the case that one party or both parties are displeased with the outcome and most likely displeased with their ex in a family law mediation. What if they’re displeased with the mediation process or the mediator? Is a recourse available to the parties for that?

Philip Theobold: Complaints are occasionally made about mediators. If they’re legally qualified, a complaint can be made to the relevant Law Society or Bar Association. If they’re members of a professional association of mediators, people make complaints to those organisations. I do a lot of mediating for a major organisation in Victoria and they have their own complaints resolution service. And I always tell people at the start of the mediation, which always seems a bit strange, if you’re unhappy with the way the mediation is conducted, you have to make your complaint. And I name the organisation. So I think it’s a good idea to be upfront with people and tell them what can happen. We don’t get many complaints, but every now and then somebody feels that they’ve been not listened to or something like that. And they want to complain about it.

Is it a good idea to have lawyers and/or support people sit in on mediations?

Benjamin Bryant: And Phil, when attending mediation, you’re allowed to bring a support person and/or your lawyer. In your experience, is it a good idea to have lawyers and support people or better just to have the mediator in the couple?

Philip Theobold: Again, it depends a lot on the couple. I used to say to people, let your lawyer stay in his or her office and just be available by phone so you can bring ring up and talk through any projected agreement. Lawyers like that, because they weren’t sitting around for long periods of time doing virtually nothing. But nowadays I tend to involve both the lawyers and the parties in the discussion.

Philip Theobold: Support people are a different category.I’m always concerned that a proposed support person has a vested interest in the outcome, particularly, for instance, if they’re an elderly couple and one of them brings one of the children. You’re always concerned that this is really about the inheritance and that may affect the advice the support person’s giving. So I tend to ask if someone wants to bring a support person, they get an independent person from one of the social sciences or a support group in the community who’s got no interest apart from making sure that the person’s comfortable and doesn’t feel distressed during the process.

When is mediation not appropriate?

Benjamin Bryant: And Philip, can you give an indication of when mediation might not be appropriate? Because obviously there’s circumstances where there’s family violence or a power imbalance or a variety of circumstances, and maybe you could speak to some of the measures that can be put in place as to make sure that people feel safe and comfortable, such as shadow mediation or telephone mediation or the like.

Philip Theobold: The big warning, I think, is the power imbalance warning. And power imbalances can be cultural or they can be based on fear of violence, or they can just be a long established habit of one party giving in to the other right through the relationship. That’s why I like to talk to the parties separately before it starts, really to assess for myself whether I think it’s a good idea for them to be together. If they’ve got a good lawyer with them. Both parties have got a good lawyer or the weaker parties got a good lawyer then I think that’s a good reason to not feel as concerned. Quite often, though, you get the feeling that this person is there and will be dominated and and will be probably emotionally distressed if they’re in the same room as their ex-partner. In that case. I don’t think there’s any option but to either offer them a shuttle mediation or tell them that, in my opinion, it’s just not a suitable matter for a mediation. We you often do them by telephone to enable people to put distance between themselves and the other party. I think in this day and age when we’re using Zoom for a lot of mediations, the parties are not in the same room, they may not be the same suburb or town. It’s a good way of balancing the power. Particularly if you use the private session, electronic breakout rooms frequently during the process.

Has the move to digital mediation because of Covid changed the success rate?

Benjamin Bryant: And Heather, I know you have to duck off to the court in a second, so I’ll ask you this question first. In your experience and especially with Covid, do you think there’s been a change in success rates or there’s been a difference in how likely parties might reach an agreement if it was by perhaps shuttle, by phone, face to face, Zooms, Microsoft Teams or the like? Is there a change in the mediation, do you think?

Heather McKinnon: I think we’ve adapted very well to the new environment. And what you see in the Zoom mediations is that the person who might have felt intimidated by their partner finds the experience quite liberating because they don’t have that physical proximity in the building. So I’m actually really interested to see whether we actually keep that model of mediation going after the pandemic passes. I think there’s some big advantages to it. It’s also very efficient. So, for example, Philip’s in Tasmania. And the cost of flying him into New South Wales for private mediation is quite expensive, but Zoom means that he can charge us rates that are sensible without the costs of travel and the time involved in the logistics of getting everybody in the same place when they’re geographically apart. So, for example, Philip and I are involved in one at the moment where the parties live a long way away from each other. The lawyers are in different cities. And Philip’s in Tasmania. Well, if we were trying to organise that face to face, it would be a logistical nightmare. So there’s going to be some big changes, I envisage, going forward. We will never go back tightly to face to face mediations.

Benjamin Bryant: And Philip the same question. The mode of mediation may have changed more recently due to Covid. Has it made any difference to the likelihood of reaching a successful agreement?

Philip Theobold: Ben, my statistics indicate it hasn’t made any difference. And I agree with Heather that I think it’s probably made a lot of people a lot more comfortable in terms of not having to face their partner directly across a table, but rather they appear on the screen together. I’ve even had some people who’ve said, “Look, I’m happy. I just want to listen. If you don’t mind, I won’t have the camera on me.” And I think a lot of lawyers like it because in those periods when, for instance, I’m talking to someone in a private session, the other lawyer can actually attend to matters in their office. They obviously can’t have long conferences with other clients. But at least they can answer the telephone and attend to emails. So the lawyers are finding it an efficient way of doing things.

What’s the best way to prepare for a successful mediation?

Benjamin Bryant: And before I let you go, Philip, I have one final question we’ve covered a lot of ground today. And a lot of different types of mediations and how it can come about and when you might not mediate. But if someone was going to mediate, what’s your advice how to best prepare for the mediation so it’s more likely that they will reach a resolution?

Philip Theobold: Mediation is about compromise. I think it’s very important that people ask their lawyers before they go to a mediation, what’s the best result I could get in this matter if I went to court? And what’s the worst result I could get in this matter if I went to court? Because they need to know the range of results. The other really important thing to know before they mediate is two things: what it’s going to cost if they go on to court, and secondly, how long are they going to have to wait to get into a courtroom. Because they are the four factors that I think people take most into account when they’re resolving a matter How much time do I save? How much money do I save? How much could I get: what’s my worst, what’s my best possible result? Can I live with the fact that tomorrow morning when I get up, I’m going to always say to myself, maybe I could have done better? But I also have to be able to also think, oh, and I could have done worse. That’s what a compromise is about.

Goodbye for now!

Benjamin Bryant: That was great. Thank you so much, Philip, and thank you for joining us today and giving our listeners a great insight into the mediation process.

Philip Theobold: Thanks, Ben, it’s been a pleasure.

Benjamin Bryant: And as always, thank you, Heather, for joining me and your ongoing commitment to making sure our community is well informed.

Heather McKinnon: That’s certainly what I love about the podcast. How great is it that we can get people of Philip’s eminence and experience to educate all of us about what happens and how to avoid pain, if you can, when you separate?

Benjamin Bryant: Absolutely. And that’s a great segue into next month’s show, which is dedicated to community questions. Heather and I will be on deck to answer questions coming directly from the community. So if you have any niggling doubts or queries but aren’t ready to see a lawyer yet, here’s your chance to get some answers.

Benjamin Bryant: You can email your questions in confidence to familymatters@bryantmckinnon.com.au. Or message us on Facebook. We will answer as many questions as possible on the next podcast due out in mid October. We look forward to delving into your questions and concerns next month. And goodbye for now. Stay safe and well.

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