Family Law Mediation

Happens, the Divorce Down Under podcast where we talk about everything and everything family law related. And welcome to another episode of Split Happens, the Divorce Down Under podcast, with me, Alex, and my fellow family lawyer, Liza.

Liza is also an ex barrister and for the purposes of today uh she's also a nationally accredited mediator. and True story. We're going to be talking about mediation today, Liza. That's right. All about mediation and what you need to know. And in particular about preparing for your family law mediation. This is a podcast all to do with people who have typically separated and they're looking to try and sort things out for financial or parenting reasons.

So Liza, let's get started and perhaps you could just tell me what mediation is. Thanks Alex. Well, mediation is basically a chance for parties to get together. and try and sort out a whole range of issues that are in dispute between them, whether it be property issues or parenting issues, it could be child support issues.

Um there are a number of different things that then that parties need to think about when they're separating and so prior to or just after separation but before everything is finalised. one of the things that parties will do is go to what's called a mediation where it's just a chance for people to Explain and ex um their reasoning why they hold a particular position and give it a and a chance for parties to make offers and Try and come to some kind of resolution.

So it's a settlement process but that doesn't necessarily have to involve the courts. No, that's right.

Okay, so if I've separated from my partners, do I have to mediate? Not really. Um, before the the court does have certain rules that um that says that before you commence parenting proceedings, for example, you're meant to go off to a mediation and um get a particular certificate from a family dispute resolution practitioner. Um that's just a person that's been appointed by the Attorney General in respect of mediations and particularly family mediation.

who can issue those certificates to say that the parties have made a genuine attempt to settle these these proceedings. So you do in certain circumstances need to go to mediation first. Right. But that's in p in particular in parenting cases. And that's because the courts and the or parliaments in all of its infinite wisdom have decided it's important for people to try and settle their disputes before they go to court. That's right.

Court's a last resort. That's right. Okay. So mediation it's a process where we get together with our ex and A mediator, such as yourself, will act not ex not as arbitrator, that's a different thing, we'll talk about that in a moment, but somebody who will uh act as an umpire for the day and perhaps try and encourage people towards a settlement.

Okay, so how would I know whether mediation would be right for me in my situation? What sort of things would I need to consider? That's a really good question because mediation isn't always going to be right for everyone and it isn't always going to be right for everyone at that particular time that it's it is proposed. So if for example you have just separated, sometimes it's too early because those emotions are running red hot. Yep. Um you can't

you can't see um the end result. You can't see where you're going to end up and there are too many issues that are what your lawyers would normally say, Oh look, that's irrelevant such as, you know, you might be really annoyed that your partner's had an affair. Well, in Australia we've got that no fault system. those issues may still be at the forefront of your mind and you may not be in a good p good place to mediate.

Yeah, so legally it doesn't really matter who's sort of transgressed or what the reason behind the breakup of the relationship is. But emotionally and personally it does. So it's still driving the way in which you're making your decisions if you're angry with your ex or if you're feeling betrayed or cheated or guilty. That's right. So there's there's a those very what I call them base elements before you make that decision to mediate. The other thing that you need to consider though

is um if there's going to be a a a power imbalance. So if for example there's been domestic violence in in the House um where parties cannot communicate effectively. Um now it's not always going to be the case that that's that that's just automatically rules you out of mediation. But in terms of um

I I'm I'm speaking more about those matters whereby there's been allegations of coercive control and an emotional abuse. I find those ones are a lot more difficult to um bring to a mediation, those sorts of parties are a lot more difficult because There is that power imbalance or at least a perceived power imbalance between the two parties.

And that risk of manipulation psychologically of somebody. But um a way that you overcome that in mediation and and you'll have done this of course is Many mediations these days, people don't even see each other on the day. And most family law mediations we keep them in separate rooms. We call that a shuttle mediation.

So that's where the the mediator will go between the s the two separate rooms and so party A will be sitting with their lawyer in one room, party B will be sitting in another room with their lawyer and Um, as well, there's always the internet, the Zoom video conferencing type mediations as well, which makes it even more accessible to parties and easier for people to mediate without having to be sitting in that same room.

Yeah, and I've done plenty of those, particularly over the last um couple of years of the pandemic and issues around having to work remotely. Uh and they're surprisingly effective, those types of mediation. It you're still seeing somebody face to face, the mediator and the lawyers are still able to talk to one another privately.

But it does encourage people to be able to put aside those coercive control issues, those domestic violence issues and be able to focus upon just deal with the property or just deal with the parenting arrangement. So shuttle type uh mediations and that perhaps sort of assists where there is some domestic violence, but I suppose you should always take advice.

And the mediator will make you'll make a call on that, won't you, before you're you allowed that to 'Cause there's always an intake session that you have before you go off to mediation and if Um the mediator will want to know whether it be through information provided by your lawyer or if there's no lawyers involved, it could be just directly between the parties and they'll have

what's called an intake session where they'll find out as much information about these sorts of issues if there is any um issues or allegations of violence. And like I I personally believe that in terms of issues r revolving around domestic violence that It shouldn't um exclude that party from being able to just have a mediation. I find that it's a lot of people say, Oh no, where the there's been domestic violence and therefore we're gonna bypass mediation.

I don't think that's really fair to um either party really to take that approach because when you have a lawyer that's representing you, they're going to be um recognising those sorts of coercive control behaviours or any other type of controlling behaviours or manipulation.

and be able to pr try to protect you from that. And I believe that it's something that is really important for parties to try, at the very least. As we said before, court is a a matter of last r is is the place of last resort. and it really is important that the parties give it all their all their best to try and actually have a go at seeing what they what arrangements they can come up with. They may they may be able to And it's a tool, isn't it?

It's a tool towards a settlement and if that means that you can finalise your relationship with this person that you have this unhappy relationship with sooner, sometimes you know, a year or even two years sooner than if you allow the courts to fix it up for you. Oh definitely. So even though there has been this this shadow of domestic or family violence in that relationship, by going through mediation, trust the mediator to make sure that you're in a safe place.

You can still get on with the mediation. You don't need to have anything to do with your ex partner and you can get on with solving That's right. So, okay, that's interesting. Um we we mentioned or I I sort of blurted out the expression arbitration earlier or arbitration.

Can you just maybe just distinguish for anybody listening the difference between a mediation and an arbitration? Okay, so the way I like to describe it is a mediator is like a facilitator. They help facilitate discussion.

They help the parties to try and resolve and bring about a resolution. The mediator isn't necessarily going to dictate a resolution. They're not going to come up with um ideas or offers they'll assist you in packaging those offers and making it sound um attractive to the other party. But they're not necessarily going to come up with the solution for you. Whereas an arbitrator is almost like a judge.

it's they will you'll present your evidence, you'll present your submissions. It may be as in a in a semi formal sort of arrangement where you have um a particular room that's set aside and parties have to give evidence orally and you have lawyers there and the and the arbitrator simply acts as a judge and they'll decide whether or not rules of evidence are going to apply or not apply.

And you can choose to go through the arbitration process, can't you? Instead of saying, I'm gonna roll my dice and hopefully the courts will get to me in about a year or two years' time you can advance that process by both parties agreeing to an arbitration process instead. That can then be made as an order, yeah. Okay. But a mediator is a person who, as you say, they're a facilitator. They're somebody that will help bring parties together, try and identify the issues that need to be resolved.

Try and get people to step away from their positions and think more about their interests. Okay.

Now, here's w we touched on this slightly, but when would be a good time to commence mediation? And on the back of that, how would I start? Where would I know where to begin with? Okay, so I would normally start uh and I know that I've got an i an interest here for to say this, but I would recommend that um parties speak to a lawyer first. because the lawyer is going to know, um when is the right time for their particular matter to go to a mediation?

So it may be a property it might be a property dispute. You may not have any of your evidence together. You may not have disclosure. You may not know what the other side has in terms of their um their list of property and you don't you may not know value. But it'll be far too soon then. If you don't know what all the money situation is, then there's no you can't negotiate.

If you haven't so if you haven't gone to your lawyer and found all that information out, um they will you could have organized this mediation, it can't go ahead really or it's not going to be that fruitful because a lot of the information that the mediator's going to want to know about in order to try and assist the party. It's it's not gonna be there and it's just so that you're not ready

So it's a second reason so it sometimes it's best just to hold back a little bit, not just because of the emotional um challenge. After you've freshly separated, you can be in a very different and difficult emotional place. But you might not have all the information at your fingertips anyway. You could be having a fairly hollow negotiation, thinking you that somebody owns all of this property, whereas in fact it could be mortgaged up to the hilt and you just didn't know that.

And plenty of them don't. Plenty of people don't, yes. I mean we I mean that's just the fact of many relationships that one person often does all the financial. um handling and the other person does all the kid wrangling or what Well that's that's my life. My my husband t takes care of all the finances. I he just tells me, you know, what what can I spend this week? Um I'm pretty much the opposite. I mean my considerably better half is is more organised than than I

Because I'm I'm hopeless. I was only s I was only saying to someone the other day, I said I I don't even use a credit like I don't have a credit card because you give me a credit card, I'll just spend it. This is why we're lawyers and not accountants. That's exactly right. We can't add up. We don't know how to budget. So you know I our listeners we we can add up. We do do property settlements. I've got we do we do add up and we've got calculators and

Spreadsheets and all of those those fun stuff. Okay, all right. So I guess that sort of brings me on to my next question, which is what would be the steps I would take in order to get to a mediation? So you've highlighted there the need to get some disclosure going and that's just a fancy legal word for saying Yeah, show me what you've got and I'll show you what I've got, so to speak function. No, they they they've been down that road.

They've already shown each other what what they've what they've got. They're no longer interested in that stuff. It's just Yeah. Figuring out what we've each got, that means, you know, making sort of uh boring lists and making little schedules of what are the assets, what are the liabilities, so what do we own, what do we owe, how much is everything worth?

Swapping statements about from bank accounts or from superannuation. Sometimes if you can't agree what a house or a car or something's worth, you might have to get it valued. Um but always try and be try best to get things agreed in terms of value'cause otherwise you've got to pay a ba pay a value and that's another expense you could do without. yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw

So if there was parenting in a parenting mediation, for example, you might want to make sure that um You know that you have um information about practical uh um bits and pieces like you know, what schools you're proposing to send the children to, where are you proposing to live, all that sort of stuff. So it's always an idea, I think, to have a bit of a bit of a plan in your head um before you get to the mediation.

um as to what it is that you're wanting to seek because from that you might need more information. Yep. So with parenting, for example, it's it's often um It's a double edged sword because you sort of like well no, it's actually not a double edged sword, it's a chicken and egg theory. You know, do you do the property part first or you do the parenting part first? Because sometimes

uh a parenting matter, particularly if there's a dispute about where the kids will live or how much time they're gonna spend with one party. If you don't know where the parties are going to be living

then it makes it very difficult to work out the parenting arrangements. So it might be that ideally in a perfect world you might be wanting a fifty fifty type arrangement where it's week on with dad um week the other week with mum and but if the parties aren't able to financially for whatever reason um have those two residences that from from the break up of the property.

If that's not gonna work, then you your parenting matters. So it's it's a bit tricky to try and work that out. So I always say to people, before you engage a mediator, before you go to a mediation, have an idea. Be prepared to change those ideas and be flexible and and And be quizzed on those sorts of ideas. Think about all the little things that you're going to need for that idea to work. And if you don't have that information. If you don't have that information at your at your fingertips.

um, then it's can be a problem to you mediating at that time. is not realistic. Maybe that you've got no practical way of having that week about arrangement with the kids. Maybe your job doesn't allow it to happen. Maybe you're a fly in fly out working, maybe uh You're still sep you're separated but you're living under the same roof at this point in time. Yeah, that can be that can be problematic.

Very challenging to try and move away from that to the new world of of separate lives entirely. So yeah, some of the steps before mediation with parenting can be particularly complex. They're having really a good understanding of what your children are about, what their lives in look like, who what schools they have, their friendship groups, their activities.

you know, who do they rely upon more? Be realistic. You know, if the if the kids are you know, they gravitate towards one parent more than the other to do the day to day perfunctory things, that might be because that's always been the role. And uh changing that role suddenly could be difficult for the kids. So don't put your own I you know, your your rights as as a I have a rights as parent. I often say to people, you don't really have responsibility.

The children have the right to have meaningful relationships with mum and dad. Try and have that on the the back of your mind whenever you're putting together any kind of I want Well I always I always like to say to people, which I've stolen from um at a a local Gold Coast mediator who I um have a lot of time and respect for, um, which is how many how many times are the kids gonna have to change beds in a week?

So you find that, you know, you might have these um parties who say, Well, we're gonna have three nights with mum, then two nights with dad and then they'll come back again for another two nights with mum and then back for another Yeah. Yes, wearing on It it does. It's like well, you know, you know yourself. You go and stay in a hotel room.

Um, you've been on holidays and the first thing you want to do when you is like when you get to the end of that, you know, chopping and changing beds is get home, get into your own bed, get into your own space. Yeah. Imagine that for a six year old kid who's got another twelve years of that to go. Of you know, for the offer. That's a really, really good way of thinking about it.

So that's where it becomes you know, trying to get the the parents to be child focused and and thinking about those sorts of things.

Now you you've you've alluded to a Gold Coast mediator there and that's my next question for you is Felly, sut rydych chi'n gwybod yw'r yw'r yw'r yw'r yw'r yw'r yw'r yw'r yw'r? A l a lot of the the mediators that you and I engage tend to be lawyers. Yep. And we tend to know their professional background and their understanding. And that can be helpful, but not in all cases. Sometimes I've used non-lawyer mediators who are very much more, as you said, facilitated.

They try to create the environment of settlement and they're not too hung up upon the the the black letter side of the law for us. But how do you go about picking the right media?

So that's the answer to most of my questions is it depends and it depends on the circumstances of the case. So if you're needing someone who you know is who you want to hammer the the legal point If you need if you need a party reality checked about having someone that's being so unrealistic then you might want to find someone that you know is that has a reputation for that sort of thing.

So some people have reputations of being, you know, quite blunt, quite forthright. Yeah. And other people might be a little bit more softly uh spoken and they they get to you by you know by kindness. And so a lot of the time mediation, um finding a a decent mediator is usually word of mouth, I think. I think it Talking to your lawyer is probably your best point because they'll be using them all the time.

That's right. So if you've got a good r if your lawyer has a good relationship with that mediator, you'll underst they'll understand what that person is like. Because at the end of the day the mediators are human as well. Um they have Most of them are.

Yeah. Well, yeah, I've I've found I had haven't really had any bad experiences with um too many bad experiences meet with mediators but um but as far as the you know, they're going to have experiences themselves, they're going to have their own viewpoints and they're going to have their own um

log of what's happened in this case and what's happened in that case and this is how we've managed to overcome this issue. So um with that one of the things that we try and do is pick the right person for not just that's gonna suit our client but also that is going to be effective. Yeah. in achieving what we need to achieve with the other side. So if we're trying to tone the other party down, well we might want that a bit more of a hard hitting um

mediator. If it's the case that, you know, we need to be softly, softly because, you know My my lady might have uh slept with her boss or something like that, then by all means and and so I felt it's a case behind me. There's and there's an issue. If there's an issue there, well

Sometimes, um, we m we're the ones that are in the doghouse, so we might need to be softly, softly. So we want someone that isn't going to be too hard hitting for the other side. We want them all to go into that airy fairy, oh, okay.

You know, these are the issues, even though the the lawyers are sitting there going, This is completely irrelevant but as far as the parties are concerned, in terms in terms of a barrier to reaching a settlement, sometimes there needs to be that discussion and you need to have that person That's the right sort of personality to facilitate that discussion. I think mediation is di very different obviously to the legal environment that we're trained.

as lawyers we think about things in the yes you can, no you can't. This is what the rules say, this is what the legislation says, this is what the cases say, these are the forms, these are the precedents. Come on, let's get it all signed. We know how to draft it. And that really misses the point. This is a human experience and some of those you know, airy fairy, I would say gently spoken or softly spoken mediators can do is to give somebody who's feeling a little bit overwhelmed by that

the confidence to be able to speak their part of the case. And given what you said as well, Most mediations in family law context don't take place with everybody sitting around a table throwing things at each other, um, for a very good reason. But you're able then as a person to you can ventilate the things that are actually bothering you.

Why you haven't been able to settle things. What it is that's actually you know under your skin, it might not be about the value of the house. It might be about its emotional connection to you because of something things that have happened there, whether it's a family home or something like that.

Using those sorts of mediators let people ventilate their emotions and sort of work through those a little bit too. That then gets them to the place of making, you know, the the more um the black letter, the legal decisions, the financial decisions a little bit easier. Auburn Legal is proud to sponsor Split Happens. You will be in safe hands with Auburn Legal. For all your family law needs, call us on 07 5500. two zero triple four or visit our website at arbanlegal.com.au.

Okay, so the mediator, the choice of that is superbly important and you know, I'm I'm down to say it, but I mean talk to your lawyer or talk to a decent family lawyer who will be using mediators all of the time and th they'll have a good idea as to who would be appropriate and give you a little a few numb names and numbers to choose from and help organise it for you. So the benefits of mediation If we go take ourselves to that, as opposed to going to court.

You can you have the power. Um you have the power to actually control what orders uh or Actually not necessarily what orders because the court will still want to approve it. But at the same but what you can do is for example in a property Um, say for example, you both want to um and this is something slight of left field, but it may be not in your interest or either of your interests to sell up because there's not much equity in the property at the moment.

Now what you can do is say, Well, okay, we want to bring an end to this relationship by

financially it's not a good idea for us to sell up and and um divide it all up at this stage. Why don't we sit on it, we enter into another joint venture agreement if you're in that position. Um and have it at more as a a a little side side hustle where you both contribute to a mortgage and then over time and then you have a separate agreement later on in respect of the um the the way that the property is to be either sold or or whatever's going to happen to it.

So a very sort of much more flexible approach that you can take. You can agree anything you like. And I can tell you now, a court would never approve that sort of um it would have to be quite clear and you'd have to jump through a number of hoops before a court approved that as a as a property order. But what you can do is Come up with these sorts of arrangements, having a have a binding financial agreement put in place, um, drafted by your lawyer.

So that doesn't that's a document that doesn't need court approval. You can just have a private arrangement chart. You can come up with a a range of different things, um, provided that they're all legal, of course. Um you know you not don't want to be committing to avoiding the tax man too much. Those sorts of things are still going to be set aside.

Your lawyers shouldn't be drafting those kind of provisions anyway, they should be giving you advice around it. So I mean the flexibility is there for one of a a big benefit of mediation, but the c the cost as well. I mean, considering you know, you you're going through that separation process, it's emotionally traumatic and then if you can't agree things with your ex, then you're staring at a very big court fees, legal fees and two years of your life that you'll never never get back.

And it the the the decision at the end of the day is taken away from you. Yeah. You're disempowering yourself, by the way. When you get to the end when you get to the end of a case, for example, a trial you're either going to have a really, really cracker day and it's going to be it's going to be wonderful.

Um, um, if it's too wonderful though, if you get everything that you want, usually there's a strong chance that the other side can appeal that decision. If you get absolutely nothing, well obviously you're gonna be devastated and then have to throw more money at it to try and appeal.

Um the very rare situation in a in a court case is that you're going to get somewhere in the middle that is um the court is going to pick a side. They're going to pick whatever it is that they think is is the right way to go um to move forward. And um you're just gonna have to live with that. So the way that um I always try and tell people that

rather than going down that court path is that you go through the mediation process. You're forcing the other party to the table to actually turn their mind to these issues. Let's resolve it. Let's resolve it on on your turn. um on terms that are appropriate for for you, that's gonna work for you and and you know, you may have to compromise.

I would say a good mediation is when both party parties leave the the room feeling slightly disappointed. Yeah. Um because you because you've because you've both compromised. And that's the whole idea because Not the you're not gonna get an an agreement unless one party folds without a compromise by both parties.

Yeah, if if everybody walks away from a settlement it's usually uh sorry, unhappy, then it's usually a good deal. Because it means there's been concession on both sides and so nobody's going to be feeling that buyer's remorse the next day. So it is normal though to feel after a mediation, particularly if you have settled, to feel that oh I shouldn't have done that. I've he's got away with too much. My bloody lawyer told me to do this. Yada yada. Yes, I know.

It's most likely going to be much better than what the alternative was going to be.

Yeah. Now you mentioned a moment ago about i in that process about sort of forcing people to mediation, you c you can't force people to Agree to something at mediation, but you can get a court order to compel somebody to take part, can't you?

So if if it's the case that um that parties are just refusing outright to mediate for for no good reason um uh you know, maybe it's an a a case that is appropriate for mediation, but yet one party's just not coming to the table, um then the court can order a mediation. And these days the mediators are you know, they're obligated to provide certificates of participation and things like that. So the courts will know down the track perhaps.

one person has been, you know, disregarding of that whole process and they've wanted to carry on litigating and they then they they're not interested in settling. interesting thing with that is that there's sometimes cost consequences that flow to that person if they don't do too well. Yeah. Um and um and they haven't really partaken in that whole experience that was recommended to them.

Okay. So let's say that we've got our mediation uh and w we've chosen our mediator and we've we've got a date booked and usually the costs of these things are sort of shared, fifty fifty. Um How long does it take in the m the mediation process? I mean I I I turn up to a mediation tomorrow. I'm I am actually in one tomorrow, but What's your experience generally? I I like I like a day. Um I know that you can do half day ones. I just find that They often spill into the afternoon and mic.

feeling that they do because no one's really everyone's still trying to find their place, find their feet. They're trying to they they it they feel like they're holding back, um, thinking that, oh, if I hold out the longer But it's not that's not what it's about. And that's where a good mediator will come in and just say, Look, let's let's start talking about these things and and a lot of the time y they'll cut to the chase and just want offers.

I'm not a fan of that type of mediation because a lot of the time Parties need to understand why things are being um held like why things aren't settling. So So it's exploring about what people actually care about rather than things that they say on their pieces of paper. That's right. So they you know, the lawyers have drafted all your all your other documents and sends all your send all your letters. So that's all the legal speak. Um the stuff that isn't in the legal in the legal letters.

are things like, Well, I don't really like the fact that you had that party that time and the kids were meant to be over at your place and um and they told me that there was drugs and they were up till two o'clock in the morning. You know, I don't trust you ever any you know. Oh yeah. Well they probably have been invited though. Anyway. Um, but the the thing though is that um In terms of sort of discussion and understanding that that's what they're doing.

um can really make a huge difference in saying, well, okay, so that was a one off. Well why don't I incorporate into a parenting order that I will um notify you of anything that is you know, that um people that are kinda come over to my house or I or I will refrain from having parties involving drugs and alcohol. Um Yeah, when the when the kids are over. Things like that. It's can be something as simple as that and it gets Wrong example. I know that, but that's okay.

I get that. No. So in the mediation the stu you know, uh a a day is probably the most typical. Half days Sump sometimes can work, but it's usually not enough time. I don't think so. And one of the um things I I come across quite a bit is where there are some great resources with some institutional um offerers of mediation, you know, Relationships Australia or the Family Relationship Centre and and some free or very low cost services, but they have very limited time available.

I think legal aid you get. Legal aid is in two hours and and that's Uh Barely enough for people to start clearing the throat in some cases in terms of getting to the heart of the issue. So a day is probably about the ideal time. If you if you're going beyond that then it's probably'cause it's highly complex. Yeah. Uh and that may be the case. You may get part you know, a partial mediation going through. You may agree some things and then to come back and carry on with the process.

That's right, you can always come back for for more mediations. Not like you have one shot at it and that's it. You can come back. You can agree to carry on mediating and and you know you can obviously carry on agree uh you can agree to sort of discuss beyond mediation as well. It doesn't have to be in that sort of shuttle process, but it's usually helpful to have that neutral third person.

Okay, so what about the day itself then? Am I able to bring a friend with me or a a brother, a sister, or a mother, a father, a support person? What what's what's the rule around that? You can but it has to be cleared with the other party because everything that's said in there is complicated. Um, I would usually try to keep support people unless it's really important, I would try and keep them away.

So a vulnerable person might need a support person but a yes a just a regular regular guy, a regular girl. Even someone who's been the sub like been a victim of domestic violence, I still wouldn't necessarily think that they need to always like have that support person then and there. If they've got a lawyer with them very often we're gonna know our clients very well. At that point.

Yeah. The lawyer's not going to the lawyer's not going to let them let anyone get away with something that's over the top. I've found in the past with um support people that with they come with a lot of great intentions and then they can run a lot of interference. And that half day mediation becomes a day or the day is still going on at seven o'clock at night and then it gets caught. I prefer to have them out. That's my that's my preference.

It may be seems to be the answer to the support person. It's not ideal. My case. Case by case, but probably avoid it if you can, otherwise you're just going to drag the process out. Okay. And lawyers would usually attend, but they don't have to. No, but it's an idea that they do. Yeah. I was talking to a mediator the other day actually and he's he's handling it.

a matter for me at the moment and it looks very much as though the parties will self represent and have lawyers on the end of the phone.

groaning at me and doesn't fancy it very much. But you know, he's going to work through that. Uh uh and he's an excellent mediator and I'm sure he'll be fine. But um Certainly it's typically the pre preference of a mediator to have the solicitors or the lawyers there so that they can deliver advice there and then as to where they stand in the land of the law and also practically They can get together um and bash out the agreement there and then. They can draft the document.

what I was gonna say because when you're if you happen to reach an agreement what I always do is um particularly You kind of know whether or not you're getting close and so if I'm stepping in the shoes of the lawyer for a party I'll start whipping up an application for consent orders. And also draft in the order. Because you've got everyone there.

they can get to the end of it and sign off on the document and all that needs to happen then is it gets filed and it gets electronically filed. So it could be filed that evening if you wanted it to. Yeah. Um pr I usually prefer not to so that there's no suggestion of there being, oh, I was coerced, I was exhausted, all that sort of stuff. I was under duress.

Yeah, there's a whole heap of it's essentially just buyer's remorse, but they come up with some reason why they and and it's it is a bit of a it's a risky move to do it on the same day. Although sometimes practical if it's not an overly complex matter. If the if the disputes aren't really uh It's more about working at the percentage point. There are no issues of d domestic violence. There's no history of any um control over somebody else.

I'll still get them to sign off on it. It just means that I won't necessarily file it until just give'em the next day because there is often you know, I I had one recently where um the consent order was I wasn't acting in it. Um Because it's a mediation that had they w went to mediation, entered into a c or drafted a consent order, signed it

And then she said, Oh no, that wasn't really explained. I didn't really understand that. And so fortunately it hasn't been filed. So but had it been filed, there'd be she'd be stuck with Oh that's remote.

Yeah, and writ large there. Yeah. Uh okay, so I'm I'm coming along to mediation. What things should I be bringing with me? I I I know the funch. That's the one thing I was gonna say. Yeah. If there's one thing I I say with these things, mediation Always a bit large.

Push on, push on through. And sometimes you you're busy in the mornings, you might skip breakfast, you might head out and then come come around about lunchtime. If you're still boxing on, it can be you you start to lose your focus. So if you're a part You need to keep your energy up. So have a light breakfast, but bring a bring a sandwich with you. Sex with you. Right. Whilst a lot of mediators will have those really good mentos lollies and but there's they just don't really last all day.

I'm told there's not a great deal of nutritional value in it. Well I think there's there's okay in the chocolate ones. Have you seen the chocolate mentos? I have the chocolate mint one. Yeah. So um so I have apart from apart from the mentos, um, because a lot of the time where the mediation is held, there may not be facilities so Or e even worse, you're walking down into the same cafe coffee shop as the other person at the same time and that's kind of toco.

Well we try and we try and say that the other party like as the mediator I would normally say Ex is going off to lunch now, so we'll just wait for them to come back and then you can go for lunch. Yeah, doesn't always work. Then and you've got the crossing in the corridor using the bathrooms and things like that, so

Preparing for the day, bring a lunch with you and or or at least make make some inquiries so that you know where you're gonna go and stop and get a coffee and just take a break. Having a break in the day is super important, making sure you drink Because otherwise you you'll stop vocing. And and also but bring all your like not necessarily a lot of people leave it on all their documents and stuff are on on their computer, but bring your laptop so that you've got so that you've got your access to

accounts like there might be an issue about what your current super balance is or what the current share balance is or something like that. Then you can sort it out. You can be two seconds. Okay.

Have you looked almost certainly there's going to be internet access uh where where you're working through. So if you've got it on your phone, the the app's on your phone, or you've got your laptop with you can access that information straight away and and answer what would otherwise be a question that could bog everybody down for an hour.

Yeah. Um oh the other thing too I would probably suggest is make arrangements if you've got kids, make arrangements for the kids. Assume that you're not going to be finished by four o'clock to pick them up from school. Make sure that there is some other option because you don't want to be saying, Oh no, I've got to go'cause I've got to pick up the kids and we're so close to finishing, so close to settling it. I was still thinking about the sandwiches and forgot all about the children.

is probably slightly more reported. Well a as you as you listen to more um of these podcasts you'll realise just how important lunch is for lawyers. Lunch is a very important part of the the working day. Yeah.

Okay, so mediation, does it work? Overall your experience with mediations I'm I'm not going to ask you for a percentage figure. Oh okay, I am. Roughly how many what's the percentage of mediations at Of course. I'd probably say about seventy to eighty percent. Yeah. It's more than more than half.

More than half. Not all of them. Yeah. But c because there's sometimes some insoluble issues, whether it's to do with uh sometimes it's th those preliminary stuff that should have been done, disclosure or valuations or there's an issue with one of the children that you didn't know about or understand. One thing to be clear though is I I take as a win, you may not necessarily have resolved all of the issues, but if you have been able to narrow some of those issues. So say for example

Um, you haven't agreed on the um percentage split of the overall property, but you have agreed that the property's gonna need to be sold. You're gonna need to do this, you need to you're gonna retain this, you're gonna retain that, etcetera, etcetera, etc. Can you agree a me a mechanism for how the next steps are going to take

What you have just done is you have saved yourself probably one to two days of a trial of having to go through all that because if you just get to a if you just only have to work out the contributions and the court only has to decide that slight issue.

and say, look, this is what we've agreed on. This this is all all okay. We just have these last little few things to sort out. It can be a discrete issue and also Because it's such a small issue, um, maybe contributions isn't a small issue, but there'll be other issues that sometimes are in fact small issues. You can get bumped up in the court system as well because the court will p might have half a day to hear that that so we can get this one off the list and move it on and it's good for you.

That's exactly right. Because you can resolve so many things at media even if you can't resolve every You might be able to resolve the parenting, not the property. That happens a lot, doesn't it? When when one side of the case gets fixed up and the other side is just too difficult or you we're still waiting for a family report or something's going on with proper You might get some interim interim orders though out of it. Which then and then you're sitting there using

time is pass ticking by in the court list and you know, you're going months down the track, these interim orders and they seem to be working. It's like, oh, hang on a minute, guys. Let's just make these final. These are these aren't too bad. It seems to work. The world hasn't ended. The kids are still alive. Yeah, so that's yeah, our experience is pretty similar with the effectiveness of mediation. It's usually a good idea. Yep. Uh and we've talked about what can happen afterwards there as well.

Um we did touch on briefly that usually the cost of the mediation is shared equally. So if you're going to mediation, you'll be paying for your lawyer, the other person will be paying for their lawyer. But the mediator and the mediation rooms and the facility. Those are the shared costs. I mean just try and give our uh any anybody listening I'm optimistic in thinking there are listeners um some idea as to how much these things actually cost

Okay. So I would say that the the what I would call the decent I'm gonna get criticism, don't care, it's fine. That's my opinion on what a decent mediator would cost. Um and they're usually sitting around the four thousand dollars a day um mark plus GST and above. I yeah, I I I there are some excellent mediators that I use. Regular heat charge are a little bit less than that. Um and also some Pop is possibly sub excellent mediators who charge twice as much as that.

Yeah. You're paying sometimes for people's CVs and egos. Rather than their skill in being able to get parties to a resolution. But the range is it's several thousand dollars a day. For the mediators' costs. I would I would It's anywhere between say two grand to six or seven grand plus GST for the mediator and usually a few hundred bucks. For the room. For the broom higher and things like that.

So That's that's that's on average I would have thought is um and so that's why I say that you'll get you'll often get a a semi a fairly decent one for around the four I look I I agree. Uh there's some excellent mediators out there, whether they are solicitor mediators, barrister mediators or indeed non legal pract mediators from time to time.

Okay, so that's what we're talking about with mediation. The one thing that we didn't touch on and just briefly in closing is that the whole process is Thank you. Yes it is. Accept. Well I did I I did a um oh it's not a thesis. It's a research project or something rather on this and I called it Unsee the in respect of confidentiality and mediations. Yeah, that's a good way to do it. Yeah, because it's very difficult to

I know something. So it's meant to be confidential. And it is confidential. Yes, you can't use that information. Can't directly use it, can you? No, but you see, once you know that something has happened, it's really difficult to not know, and then you'll find another way to try and get that information out legally. So what you can't do and what it's very what it's

things that you can sort of get away with. And we've got a case once where um I think Dad Dad disclosed his intention to relocate um in the mediation. and the other party wasn't wasn't very happy with it and they've tried to use that information. Sorry, sorry dad. Um, sorry mum, you can't actually use that information and that's all, you know, good luck trying to get that information in as evidence because you can't use it. But if you say for example

Oh, well, um, I've I've bought a you know, it might be a property case. I've bought this boat and I really need to pay that off and this is why I'm doing this and

all these expenses and you and and you might go, Well, okay, right, I can subpoena those records and try and get that information now. You're not necessarily using the fact that he's got the boat that he's not disclosing, but you can get those financial records to show um through legitimate ways such as subpoenas, that h what he's purchased and you know, he's like, Oh Gold Coast Marine, forty thousand dollars. So so you can in fact technically speaking, still have legitimate ways of using the

So mediation, it's confidential except for when it's not. Or except for when your lawyer can think of a good way around those confidentialities. Pretty much. So so when tha that that's probably one of the downsides um that I always as the lawyer for the for my part for the client, I would always say to them, Okay, just remember that it's all good to lay it all out on the table. But just remember that they can't unknow something. They can't unsee.

Unsee it. They can't they can't um they will most likely try and use that information against you if you're not careful. Yeah. So work that work these things through with your lawyer when you're going through your family law mediation. And look, I hope that podcast has been of some help or interest to somebody. If you've got any questions, just flick us a note and uh Thank you very much indeed for listening to Split Happen's Divorce Down Under with Liza and Alex.