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Family Law – Differences between a mediation in children and property matters

Podcast Episode by Pearsons Lawyers
11 May 2021

(Transcription)

Leanne Abela:
Hello, I’m Leanne Abela.

Anne Ariyaratnam:
And I’m Anne Ariyaratnam.

Leanne Abela:
And we’re both from Pearsons Lawyers and welcome to Pearsons Family Law Podcast, Anne. This is the first one that Anne has done in conjunction with me. We’re using all of our solicitors to talk about some of their pet topics and to rely on their very many long years of experience. And so today’s topic is a really interesting one Anne. So you’re going to be discussing with me the difference between a mediation about children and a mediation about property, because there is a difference isn’t there Anne?

Anne Ariyaratnam:
Yes, there’s quite a difference.

Leanne Abela:
And also then I guess that will also cover the difference between an external mediator provider and a mediation that is court ordered.

Anne Ariyaratnam:
Yes.

Leanne Abela:
So why don’t we start off by talking about the mediation about children, typically where it’s held and what’s covered.

Anne Ariyaratnam:
Yep. So generally when we have mediations in relation to parenting matters, it’s usually done in a venue where we’re sort of all sitting around a big round table. You would have the other party, their legal representative.

Leanne Abela:
That can be a solicitor or barrister?

Anne Ariyaratnam:
Yes, exactly.

Leanne Abela:
But usually a solicitor, isn’t it?

Anne Ariyaratnam:
Usually a solicitor.

Leanne Abela:
When it’s children.

Anne Ariyaratnam:
When it’s children.

Leanne Abela:
Yeah.

Anne Ariyaratnam:
Yeah, exactly. So we basically start off talking about what each party’s competing proposal is.

Leanne Abela:
And we would normally know that beforehand, wouldn’t we?

Anne Ariyaratnam:
Yes, exactly. We would have exchanged either correspondence or perhaps a minute of proposed orders before we even get to the mediation day.

Leanne Abela:
So no one’s blindsided.

Anne Ariyaratnam:
No.

Leanne Abela:
But I guess it’s really important, do you find, to go in without a fixed point of view and with an open mind and a sense of creativity because you really want to create a solution that’s best for the children, keeping in mind their ages and where they’re going. Do you find that that’s always useful even though you’ve got your position paper to be rather open-minded?

Anne Ariyaratnam:
Yes. So in parenting matters, everyone has to be very child-focused and you have to be prepared that you may not come out with exactly what you wanted but perhaps a compromised position or something that we sort of say, something you can live with, something that’s going to work for you and your family. So-

Leanne Abela:
What you go in with might be not what you come out with.

Anne Ariyaratnam:
Exactly.

Leanne Abela:
But it still might be a really good solution for the children.

Anne Ariyaratnam:
Yes.

Leanne Abela:
And for families that are whole, taking into account that people still have to work, they still have to provide for the children, the children still have to go to school, they have to do their extracurricular activities. When you’re juggling all those balls, there’s not a one size fits all for the family. So mediation often is a really great opportunity to hear the other party and come up with a really good solution.

Anne Ariyaratnam:
Exactly, yes.

Leanne Abela:
And some of those solutions are suggested by a mediator. I was at one yesterday and the mediator came up with a solution that almost has resolved the matter that neither party had thought of. So it’s also relying on the whole years of experience of the solicitors, the mediator and everyone involved.

Anne Ariyaratnam:
Well, that’s the benefit of having a legal representative there. It’s someone that can sort of… They’ve had experience, they’ve done these sort of mediations time and time again so they can think of creative ways of resolving any issues that might come up or if you sort of reach a stalemate in the negotiations, they can definitely help with that.

Leanne Abela:
So some of those mediations are conducted, the children’s ones, at a mediation center?

Anne Ariyaratnam:
Yes.

Leanne Abela:
A paid mediation center, or at a barrister’s chambers if barristers are involved, or solicitors offices if a solicitor’s involved or Victoria Legal Aid, because they run mediation services as well, at Victoria Legal Aid. And sometimes the court will order the parties to go to Victoria Legal Aid. So that’s another point, isn’t it?

Anne Ariyaratnam:
Yes.

Leanne Abela:
Yep. So how is that different Anne, to a property mediation?

Anne Ariyaratnam:
A property mediation is a little bit more, I suppose everyone’s a little bit more prepared at the beginning because we’ve got usually before mediation, each party would prepare sort of a balance sheet so we know exactly what our position is in terms of what we say is the asset pool and what the asset pool is made up of. So all of your assets-

Leanne Abela:
That’s right.

Anne Ariyaratnam:
And all of your debts. So we try to crystallize it as much as possible before we even go into the mediation.

Leanne Abela:
Valuations have happened.

Anne Ariyaratnam:
Exactly. Valuations of property, business.

Leanne Abela:
Of businesses, property.

Anne Ariyaratnam:
Yep. And we usually do exchange those balance sheets with the other side before we even get into the mediation. So we all know where the differences lie in each person’s case. And then the way that a mediation generally kicks off is with some informal negotiations if you will between, if you’re represented, your legal representatives so that each barrister or solicitor gets an idea of where the other person is going today, what their bottom-lines are and what they want to achieve out of the day.

Anne Ariyaratnam:
And then we sort of kick off with an exchange of proposal. So usually the applicant or the person who’s initiated I guess the mediation would start off making their first offer and then it, it goes back and forth from there.

Leanne Abela:
So that mediation often occurs in barristers chambers or solicitors rooms.

Anne Ariyaratnam:
Yes.

Leanne Abela:
And then there’s what’s called a conciliation conference. And a conciliation conference is usually ordered for small property pools and a registrar of the court will mediate that.

Anne Ariyaratnam:
Yeah.

Leanne Abela:
In a similar way with balance sheets, et cetera, they’re usually allocated one and a half hours to two hours. But at the moment, as we’re doing these podcasts, I have a mediation going downstairs that’s been going from 11:00 AM and it’s now 4:00 PM and we’re still going. So sometimes you can get a registrar who’s not too busy, who doesn’t have too many cases allocated back to back, and he’s prepared to put in the extra time.

Anne Ariyaratnam:
Yeah.

Leanne Abela:
When parties are pretty close.

Anne Ariyaratnam:
Or you can even sometimes book in a double conciliation conference.

Leanne Abela:
You can. Really good point. If you think that you need more than the allocated one and a half to two hours, you can ask for a double header, that is a back-to-back mediation so you’ve got a whole four hours and that’s really useful. And of course, then you don’t pay for a mediator because the registrar is a registrar of the court who’s very experienced and the cost of a mediator is saved so parties are only paying for their legal representation.

Leanne Abela:
And of course, there’s also the opportunity for parties to mediate outside the court system completely and go to a mediation center such as Relationships Australia or Family Dispute Center where usually there are no solicitors and they mediate themselves.

Anne Ariyaratnam:
Yes, exactly.

Leanne Abela:
So, that probably covers the different kinds of mediation. Is there anything else you wanted to cover Anne?

Anne Ariyaratnam:
No, I think we’ve sort of covered everything. Obviously in both scenarios, the benefit that you have is you have that independent third person there whether it’s a registrar of the court or a mediator, and often the mediators, for example, the mediators that we use are people who used to be on the bench.

Leanne Abela:
Very experienced

Anne Ariyaratnam:
So might have been a judge or a senior barrister so they can be quite helpful.

Leanne Abela:
So, that’s all for today’s session. Thank you from Leanne Abela.

Anne Ariyaratnam:
And Anne Ariyaratnam.

Leanne Abela:
And if you want to have a free appointment at Pearsons, please contact us on 1300-699-688 and our receptionist will book you in for a first free consultation with one of our solicitors. Thank you.

Pearsons Family Lawyers

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