Monday, 6 July 2015

Some basic lessons of mediation: learnt over 29 years!

It is hard to believe, but it is now almost 30 years since I attended my first mediation in family law.

Back then we didn't call them mediations. We called them legal aid conferences. Legal Aid Queensland worked out that it was broke and decided to do something innovative- rather than fund both parties to go to court (remember when they did that), it thought that it could innovate by mediating a dispute, and hopefully get the matter resolved, with a better outcome for the parties, the children and taxpayers.

It pioneered an approach nationwide that then rolled out across the country, being finetuned year after year since then, aided by regulatory changes in 1996 and (a big lick of money as well) in 2006.

How we mediate has changed considerably since those pioneering days. No longer it is done in the lunchroom at Legal Aid's Woodridge office (at least I hope not!). Back then there were no offices for this new program, so the staff lunchroom was the one that was requisitioned. It was the only one big enough, but there were some obvious drawbacks:

  • everything had to stop at lunchtime, whether we liked it or not. Legal Aid employees in the office at the time quite rightly used to get quite snappy when they couldn't have their lunches! It was bad enough that they were prevented form having their coffees!
  • there was no ventilation. Sooner or later the oxygen level in the room would drop, the heat would increase and we would have to open the door to vetilate- rather defeating the confidentiality of discussions.
Since those pioneering days (back when Legal Aid Queensland had its headquarters in what is now Macarthur Chambers), mediation practice is much more streamlined. There are some common features between then and now:

  • It's not court! The mediators role is help fashion an agreement. It is not to find fault or determine who is telling the truth. He or she is not the judge.
  • Similarly, there are no witnesses. It's just and your ex (or more parties for more complex disputes). No one is getting into the witness box.
  • It is a bargaining exercise. The whole idea is to see if you can cut a deal, either about your kids or your money or both. It is a reality test.
  • If you can cut a deal, then that deal is usually the best. You don't want to be cut short, but then you don't want many months of agony, spending countless thousands on legal fees, taking time off from work, and always wondering whether you will be ok.
  • You are in much more control of the outcome than if you have a trial. While trials can have their cleansing and therapeutic sides- that type of trial is very rare. Much more likely is that someone who does not know you, your ex or your kids will be making hurtful comments about your and your childrens' lives. This can be largely avoided by mediation, or as we seem to be compelled to call it these day in children's matters- family dispute resolution.
  • It's good to be prepared! I have lost count of the number of clients who have come to see me for the first time, to get advice about the deal of the century that they have signed at mediation. Too often I shake my head and say- this is a bad deal, and it could have all been avoided if only you had properly prepared for mediation, including obtaining legal advice before you turned up.
  • When it comes to property matters it is important that there is as much agreement as there can be about the property pool and the history of contributions.
  • Mediation is generally ill advised in domestic violence and sexual abuse cases, or similar cases. Each of the parties must feel as though they have equal bargaining power- otherwise mediation is pointless.
  • If there is a domestic violence or similar order, it needs to be considered carefully before the mediation occurs, as the terms of the order might mean undertaking mediation in some form (or at all) is a criminal offence.
  • Mediation is not limited to occuring in person. Most occur in separate rooms, but can also occur via technology, such as Skype or phone. 
  • Going to mediation can be stressful! Guaranteed you will feel worn out afterwards!
  • Don't resile from the deal. It is better not to sign a deal, than to feel pressured, sign away and then the following day or week say- no, I am not going through with that. If you think things were ugly and bitter before the mediation, guaranteed that they will be a whole lot worse afterwards.
  • You can still live in hope. Many matters that don't settle at mediation settle afterwards. Last week one of our clients settled her matter some weeks after mediating. After they were poles apart at mediation, I thought that the chances of going to trial were very high. A great outcome!

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