Mediation News and Articles
December 2014: Morton -v- Berry
Children's Wishes and Changes in Circumstances
No doubt, many of you have read the recent Full Court decision in Morton & Berry  FamCAFC 208. If not, I would recommend that you read the decision as Justice Ainsley-Wallis writes a concise, but helpful summary of the development of the Rule in Rice & Asplund.
The case involved a residency dispute of a child who was about 10 and a half - 11 years old at the time of the Hearing. Previous Consent Orders had been made only some 2 and a half years earlier in March 2011, when the child was about 7 years of age.
In those Orders, we are led to believe that the mother was the uncontested primary parent and the daughter had contact with the father.
Read full article.
"My Mediation Style and Process"
I have always believed the best chance of success in any matter is directly correlated with how well one prepares in a matter and in particular, their attention to detail. Mediation is no different. I believe that well prepared Mediators have the best chance in assisting parties in settling their matter.
In all of my Mediations, I will be asking the lawyers to assist me in the preparation. I will also be asking the lawyers themselves to be well prepared and organised. Each lawyer will be given a sheet outlining matters that I wish them to attend to prior to Mediation and what I wish them to adhere to during the Mediation process. There is nothing worse than turning up at a Mediation when neither of the lawyers of the parties have had any discussions about the simple things, such as the identification and valuation of the property pool. There is nothing worse than the Mediator, lawyers and their clients wasting half of the day debating about the value of a piece of property that should have been valued weeks ago.
In both property and child matters, it is important to recognise that there is a wide discretion in the Court system in which we operate. I will always encourage practitioners and their parties, to try to focus on their "best case" scenario and their "worst case" scenario. Those scenarios should never be revealed to the Mediator, but are helpful in preparing your clients for a variety of outcomes within an acceptable range.
Prior to the Mediation, I will be contacting the practitioners (I will only contact the clients personally if they act for themselves) with a view in ascertaining that the matter is one that is suitable in all respect for Mediation.
At the commencement of the Mediation, I like to conduct separate intake sessions with each of the parties and their lawyers separately. These sessions usually take about 15 to 20 minutes each. The purpose of these intake sessions is to explain the Mediation process and the procedure for the day to the parties in plain English. It is a chance for the parties to voice any concerns and worries they may have about the process.
During the initial intake session, I may also explore any outstanding issues with the lawyer that are not clear from any documents or brief that I may have received prior to Mediation.
Initial Joint Session
In most cases, I will be conducting an initial joint session with all parties and their legal advisors. There will be some Mediations where joint sessions may not be able to be held, due to Domestic Violence Orders, but in most other cases, it is my preference for a short joint session (about 15 minutes) to take place.
During the session, I will not be asking the lawyers to argue with each other, nor the parties to speak to each other. I will be doing the talking and explaining the process and procedures and obtaining everyone's commitment to that process, before we commence the Mediation more formally.
Private Meetings and Shuttle Negotiations
It is my preference in most matters (especially property matters) that the Mediation process will involve the parties and their lawyers staying in separate rooms whilst I move between the rooms to help facilitate offers made back and forth.
During this process, all communications that I have with the parties and their lawyers will be strictly confidential and nothing whatsoever can be communicated to the other party, unless I am expressly authorised to do so.
It is during these private Mediations that I will work more closely with the parties and their lawyers.
In some situations, it may be necessary for me to provide some reality testing to the client and in some situations, it may be necessary for me to offer some view points on areas of Law to the lawyer.
My focus will be on the "big picture"… I don't intend to allow parties to waste valuable time on arguing about the "rats and mice" of the case…..I will be encouraging everyone to take a commercial view of possible solutions.
It is not my intention or aim to beat lawyers around the head or to tell them what to do, however, I still believe it is very beneficial for lawyers and their parties to hear other opinions about what a possible outcome may be in a discretionary system. My viewpoint may not be correct, but it may assist the legal practitioner and their clients in moving forward and making further offers within an acceptable range of outcomes.
At no stage, would I ever embarrass a lawyer in front of their client, nor would I ever take a definitive stance. My experience in family law tells me there is never one correct definitive outcome.
Engagement with the Parties
My Mediation style will also involve myself engaging regularly throughout the day, with not only the practitioner, but more importantly, with the client.
It is my experience that the parties often feel left out of mediations and negotiations. They often have a story to tell, which in many aspects is irrelevant to the lawyer representing them. However, those stories are not necessarily irrelevant to the Mediator and it is important that I develop a rapport with the party individually so that they are able to trust in the process and the outcomes. They need to feel very much a part of the process and they need to very much "own" their own solution to the outcome.
If a settlement is achieved, then I will ask the parties to at least record and sign a Heads of Agreement document that they can prepare and sign at the end of the Mediation. In some circumstances, clients may be very emotional and will not want to sign anything. However, I believe it is imperative (if possible) to have something signed at the end of the day. In some circumstances it will not be appropriate and I will always leave that decision to the lawyers, but my preference would always be for something to be signed.
Finally, there seems to be an accepted saying amongst Mediators that if parties are quarrelling and do not seem to be agreeing, then the Mediator should say something like, "I do not care whether you settle or not, I am getting paid anyhow."
I find such statements quite bewildering.
As a Mediator, my style will be friendly but passionate. I do not intend to let good opportunities to settle "slip by". I intend to use whatever tools and skills I have to assist the lawyers and their clients to come to a resolution and we all know the best chance in doing that is in a controlled formal process such as Mediation. We all know the perils of family law. To sit back meekly and simply agree that parties cannot agree and take a cheque is not good enough.