“GETTING THE MOST OUT OF MEDIATION” September 2016
WHY MEDIATE? FIRST IN A SERIES ON THE TOPIC
The Family Courts are so severely under resourced that they cannot deal with the matters presently awaiting final hearings. This makes it really hard for you having to wait in long court lists without any prospects of finalising your matter and more importantly, moving on with your life.
A timely mediation might be more advantageous for you and your family as a whole than waiting for a judge to be involved and decide your family’s fate.
Lawyers are also finding it increasingly difficult to deal with the growing dissatisfaction of their clients in relation to Court delays. So the lawyers are often resented or blamed by their clients starting for these delays which are beyond the lawyers’ control. It is becoming harder to manage clients’ frustration and disappointment by the time their matter comes before the Court. Worse still, the landscape of a family’s dispute often alters to one person’s detriment whilst these delays drag on.
At times it seems as if the Family Law system does fail clients because lawyers can’t get their clients’ matters heard or dealt with in an efficient manner. Simply put, it is not the fault of the lawyers but of an overburdened court system that needs more resources. As is oft quoted: justice delayed is justice denied.
Things that can happen whilst you wait for the Court……
Some of the things that can happen whilst you are waiting for a final hearing include:
• Children get caught in the cross fire of disputes, even if the dispute is limited to assets and debts and even if the parents think they are acting protectively;
• Parents, who may have been able to work together well initially, struggle to find good will as the dispute drags on;
• Couples run out of money due to the length of time of the dispute and legal fees spent;
• Clients have to borrow funds from family or commence proceedings in court on an interim basis for litigation funding and therefore incur additional cost;
• People who do not separate well then use the delay to punish the other person and incur increased legal fees for both of them;
• Value of assets may change markedly with the passage of time, either due to market forces or due to the behaviour of one or both parties;
• By the time the Court deals finally with the division of assets, the available assets may bear little resemblance to that which existed proximate to separation;
• Suspicion and fear take over and clients are less likely to be able to settle ahead of a final hearing;
• Clients often perceive that this demise in value of the pool of assets has happened either with or without their consent, either with their knowledge or it has happened without their knowledge and has occurred deliberately and maliciously as a result of the other party’s behaviour;
• Clients believe that they have been deprived of their fair share of the assets because their ex-spouse no longer cares about them, their children and hasn’t put in the effort to maintain a business or maintain an asset’s value;
• Clients believe the moment the ink is dry on a Court order, the wealth of their ex-spouse will rise again like a phoenix from the ashes;
• Clients want to get on with the rest of their lives but can’t whilst waiting for finality.
And yes, much of what has been outlined above does happen.
So the sooner these suspicions or concerns are dealt with and the sooner the division of legal and equitable interests can be managed to finalise matters, clearly the better – not just for you as the clients but for your children, your family as a whole and believe it or not, it is better for the legal system to have you resolve your matter.
Children suffer
There is of course another reason why delay is so pernicious in our jurisdiction. I cannot conceive of anyone heading to a final hearing who can separate their feelings about the other parent from the proceedings. In short, even if children’s issues are not before the Court and the Court is being asked to adjudicate solely on the issues of property and spousal maintenance, I cannot name a single client in all my years who has been able to successfully shield their children from the fall out of litigation.
Given that we know the percentage of those who need final determination is unvarying in the range of 3% to 5% each year and given that in the main these are made up of the more litigious people or cases it becomes even more critical for those of us who represent this most litigious cohort, to find other means of finalising their dispute.
Does your ex have a high conflict personality?
I recognise that you may be separating from someone who has a high conflict personality, a personality disorder or mental illness and is unable to navigate through conflict well. If that is the case, it may simply be inevitable that you require final adjudication. That said, you need to be aware of the delays in reaching that final door of Court and the costs that you will incur in getting there and having your matter dealt with by a judge. Your solicitor must inform you in writing about the costs you are likely to incur in your matter and the worst costs case scenario including the cost of proceeding to a final hearing.
Delays in obtaining judgments
It should be noted that it is not just the Court waiting time in relation to the hearing. There is then the issue of waiting for the judgment. All the while, the pool of assets to be divided between you and your ex does not necessarily increase in value. In many cases, as stated earlier, the pool is slipping into financial quicksand. And then there is the re-partnering by one or both of you and the potential competing entitlements by subsequent spouses or de facto partners – the so called “piggy back” litigation.Even if there is no separation in the second relationship, the Family Courts would have to consider the potential entitlements of third parties who have partnered with one or other of you and the ramifications of any orders that the Court proposes to make on the rights of those third parties.
Forms of Mediation
There are many forms of mediation and to discuss what these are and explore them in any depth would take longer than time permits today. One of the texts used in training mediators in family law is “Divorce and Family Mediation” by Folger Milne and Salem. The authors outline the history of how divorce and mediation came to coalesce as a means of assisting separating families resolve issues relating to family breakdown outside the court system or sitting alongside the court system. They explore the main types of mediation as being:
• Facilitative,
• Transformative,
• Evaluative,
• Therapeutic,
• Narrative and
• Hybrid (of various forms of mediation).
Shuttle Negotiation
The usual form of mediation that lawyers in Australia use when mediating with family law clients either before or during a court process is none of these. Unless you choose collaborative practice as a means of dispute resolution, and if you mediate, most likely it will be a form of shuttle negotiation. (I make the point that not all lawyer/mediators use this method.)
What is involved in shuttle negotiation?
Meeting the mediator
In short, we see a mediator starting by meeting you and your legal representative at the mediation, which could be your solicitor and a barrister. The mediator will discuss what the process for the day is likely to be.
You, your former partner and your respective legal representatives may meet individually first but briefly with the mediator to discuss how the mediator anticipates the day progressing before the mediator asks you to come into one room and sit at a table with all present.
During this joint session you and your ex-partner would not ordinarily participate in the conversation. Neither of you would be part of verbalising the solutions that either of you would like to see implemented
Rather, your solicitor or a barrister would outline the basic features of your case and what the legal arguments are likely to be if the matter proceeds or continues in a court process. At the end of this joint session, the couple are usually then asked to meet with their legal representative and the negotiations begin with the mediator going between rooms to listen to and participate in separate conversations.
If you are in a shuttle negotiation…
You do not get to work on what is wrong with your communication with your former partner. This is not a form of therapy and nor is an attempt to help the two of explore or test which options may suit both of you. Rather, there is usually two competing suggestions made about how to settle the issue in dispute. These two suggestions are often opposing and mutually exclusive. Sometimes the day involves refining the proposals but rarely does it involve completely departing from the opening suggestion, unless it becomes obvious the proposal made by one party is impractical and highly unlikely to be ordered by the Court.
What you should not expect of shuttle negotiation…
It is rare for there to be a cathartic breakthrough in the interpersonal dynamics of the couple. There is no ambition to offer therapeutic or transformative work. This is not intended to be a criticism of the shuttle negotiation model. The models to which I referred earlier are not capable of being applied in a half or full day format. They require time, finesse, highly skilled and intuitive teams and a great degree of trust between lawyers representing the clients involved in the process. The clients also have to trust the process and to some degree each other and have to want the best possible outcome for the family as a whole.
What is a shuttle negotiation?
The shuttle negotiation model, with which most of us are familiar, is a one off or one day event. It has the benefit of galvanising action and focussing effort and thought into that one half day or full day. It has the detriment of compelling people into a settlement without them having the benefit of sitting with the outcome and contemplate it.
What do I need to know to prepare?
As a client you should know in advance what it is that you are proposing and what you understand the range of likely outcomes to be in a Court process. This advice should be given to you ahead of time so there are no surprises on the day and provides you with some thinking time so you can “try on” the proposed settlement and hopefully avoid what we refer to as “settlor’s remorse” the next day.
You should also have some sense of what your ex-partner wants from the settlement and discuss this ahead of time with your lawyer. Think about where your proposals will vary from theirs and what you will have in common. Think also about what you might be willing to give up in order to do a deal on the day.
What is the “client-thinking” v the “lawyer-thinking” in shuttle negotiation?
So whilst shuttle negotiation is the most common form of mediation it also sometimes misses the mark as far as client expectation is concerned so managing that expectation is critical as is ascertaining what the client thinks mediation is and dispelling any misconceptions.
Interest based v rights based model
Shuttle negotiations are not interest based. They have very little to do with what the client is really thinking or feeling about their separation, their ex-partner or what they believe they are entitled to from the marriage. They also believe, falsely usually, that they will do better in front of a judge.
If you find yourself thinking this, you need to explore this with your lawyer. There is no one definitive answer as to what each party will get at a final hearing. A judge’s determination is in fact just one opinion. Your lawyer’s opinion is another. The lawyer acting for your ex is another legal opinion.
The Harvard Orange
The Harvard orange was developed as an illustration by the Harvard negotiation project to demonstrate the way in which an interest based model works (think about mutual clients’ interests being met) as opposed to a rights based model (think law and court imposed solutions).
Imagine you are preparing dinner and two children are fighting over an orange. Two children, one orange. What would you ordinarily do? “Cut it in half” I hear you say? Yes, that is certainly one way of managing this dispute. An even half seems to fit the bill and it seems “fair”. Or does it?
Imagine if you had taken the time to explore with the competing children why they wanted the orange. Imagine if one child said they needed the pips and the rind to germinate the pips and grow mould on the rind for a science experiment. The other child, when asked, said they wanted the juice to make cupcake icing.
By halving the orange, you have effectively deprived both children of their ability to maximise their interest or need for the orange. By listening and exploring a range of possibilities, other than the obvious act of halving, you have arrived at a more elegant solution; one which meets the needs and interests of both children.
Mediation takes place under the shadow of the Court
When we attend mediation, we need to acknowledge that mediation is conducted under the shadow of the courts and the Family Law Act. In other words, in the rights based model.
In short, the threat of being able to revert back to the mainstream legal process is ever present. Its focus tends to be the focus of the legal construct. When the going gets tough, the lawyers tend to rely on the law and what a Court might do in their situation to dissuade a client from terminating the process. The mediators may paint a very clear picture of what they think a court may do in a given fact situation and hope this is persuasive to one or both parties. Some mediators prefer to see if the couple with their respective legal advisers can reach agreement first before delivering their view.
In any event, few mediators (noting there are some who do conduct these events as interest based mediations) conduct preliminary meetings with clients and their lawyers to ascertain the participants’ concerns, interests and what is and what is not negotiable, at least in the mind of the parties. Instead most mediators revert back to the legal construct to explain why little attention is paid to heart felt and non-negotiable interests of the participants (no matter how unrealistic one participant is being in holding onto that view).
So whilst the mediator may be able to dispel the myth of “I think I will do better in front of judge” – the other unspoken concerns and motivations of the client are often not addressed in this form of mediation.
Many lawyers do not spend the time with their clients listening to them and unpacking their concerns, fears and beliefs. If you as a client do not believe what matters to you most has been heard, prior to any mediation, you should make a time with your lawyer to specifically discuss those issues so that your lawyer is left in no doubt about what concerns you.
Whilst it is entirely appropriate for your lawyer to give you letters of advice prior to a mediation, if you do not believe your interests have been canvassed in that advice, then make sure you have time to discuss this with your lawyer. As a client, it is important for you to understand how the law intersects with you and your family but there may be many issues of worry, interest, concern, that the law does not cater for and you need to explore with your lawyer how best these can be managed leading up to and during the mediation.
The other reason you receive advice prior to a mediation is to help you familiarise yourself with the language that the lawyers are likely to use on the day. You have the right to have these explained to you in detail prior to the mediation and if you need anything clarified, this can be done as it occurs to you.
Disconnect between You and the Process
Consequently there is often an inherent disconnect between what the client is thinking, fearing, feeling and what is being discussed in the negotiation or mediation. In my experience, most clients are not inherently interested in the four step process when it comes to dividing assets (altering legal and equitable interests). Most clients are not interested in the legal process and application of the relevant sections of the Act that occurs when lawyers are advising them or the court is asked to make decisions on their behalf.
I think it is really important for you as a client to have told your lawyer what is important for you and for you to have the opportunity with the assistance of your lawyer to explore your interests. A good lawyer will work with other professionals to ensure that you are ready to have a settlement discussion so this will mean working with health care professionals.
Do not expect your lawyer to give you a $ figure
No lawyer will give a definitive figure or outcome by way of advice leading up to a mediation as this advice is ordinarily given as a range of possible outcomes. This is due in no small part to the inherent discretionary jurisdiction of family law. A judge’s decision is also dependent on the evidence that is presented to the Court both prior to in the form of Affidavits and also during the course of a hearing by way of examination in chief and cross examination – a series of questions put to each of you, your ex-partner and other witnesses, about the case.
So at mediation, it is possible that not all the material has been presented or identified and therefore the legal opinion at this stage is based on what is available and what is known.
What about arbitration?
Although I intend to explore the benefits of mediation in a series of blogs, you may want to ask your lawyer to explain the benefits of using arbitration as a means of finalising your dispute. Your lawyer may be able to explore this as an option with your ex’s legal representative. I suggest using arbitrators who are not located in our geographical locale as there is a tendency to not wish to engage professionals in this role with whom one or other lawyer may work closely on a regular basis.
CAROLINE COUNSEL
Disclaimer: This article is not intended to constitute legal advice and should not be relied upon as such as it is intended for general information only and is not written with any one specific client or situation in mind. Should you require legal advice about your family law matter you should contact our office on (03)93203900 and make a time to consult with one of our lawyers.
