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What is family law mediation?

Podcast Episode by Pearsons Lawyers
4 January 2021

(Transcription)

Leanne Abela:
Hello, I’m Leanne Abela.

Joe Schepis:
And I’m Joe Schepis.

Leanne Abela:
Welcome to this podcast of Pearsons Law called…

Joe Schepis:
What is family law mediation?

Leanne Abela:
What is family law mediation, Joe?

Joe Schepis:
Well, you and I, as we know, spent two years of our lives in 1999 and 2000.

Leanne Abela:
It was ’99 and 2000. Do you know how I remember that, Joe?

Joe Schepis:
Tell me.

Leanne Abela:
Because I was pregnant with my second child, with Marcus and I… So we, at that stage, so Joe and I have both graduated in 1985, Joe from Monash, myself from Melbourne. So we hadn’t gone back to study and for some crazy reason, in 1999, we decided, not so crazy, it was for good purposes, we were really interested in the mediation model. And in the years that we studied at Melbourne and Monash Uni, mediation wasn’t even offered because it wasn’t even a thing.

Joe Schepis:
It didn’t exist.

Leanne Abela:
And so we thought for us to participate and represent clients well, and also be mediators ourselves, we need to go back and do, not one of these three day courses or weekend courses, we wanted to do a graduate diploma in mediation. So for one weekend a month for two years, we went to La Trobe University and studied mediation and there was a bucket load of work.

Leanne Abela:
And the reason I remember the years is because I was pregnant and gave birth to Marcus at the end of 1999, which was exam time in the mediation course. And I couldn’t fit behind the desk-

Joe Schepis:
I remember that.

Leanne Abela:
… because I was so big. And so they had to-

Joe Schepis:
Get a table and chairs.

Leanne Abela:
… get a table and chairs for me and extend the time that I had to do the exam. And I just think, I look back on it now, I think, oh, I was bloody crazy because it was a really hard course, wasn’t it? There was so much reading and so much work.

Joe Schepis:
There was a lot of work, but we were visionaries. We weren’t crazy. We were visionaries. We saw that this was another way for our customers, our clients to try and resolve the matters without going through the torment and the expense of litigation. And in those days, nobody knew about mediation and now it’s compulsory. It’s compulsory through the court system. It’s compulsory before you got to court for parenting matters. I don’t consider that we were crazy at all.

Leanne Abela:
No.

Joe Schepis:
We saw that there was an opportunity here for us to get on board early in the piece and learn about something that was, we thought very important and it became very important and so much so that it became mandated.

Leanne Abela:
Yep. And in fact the paper that I did in the course was on whether or not mediation should be made available to victims of domestic violence. Because the thinking at that time, back in 1999, was that if you were a victim of domestic violence, you should be precluded from participating. That is compulsorily precluded from participating in the mediation process, because it would be disempowering for you and you were not in a position to be able to participate equally because of the imbalance of power. And the paper that I wrote took the view that that would be further prejudicial and further victimizing victims of domestic violence. How is it that the perpetrator can participate, but the victim can’t, and that we were then not giving them a voice to be able to participate and to air their grievances and to have power in that mediation process.

Joe Schepis:
Or not be denied of that opportunity.

Leanne Abela:
Exactly, exactly.

Joe Schepis:
And as we know, you can do shuttle mediation. You can do all sorts of different types of mediation. And these days, like I did one on Friday, my client was here with her brother and her husband in our boardroom. And we did it by way of Zoom with the mediator in the city and the other side were at their lawyers office. We had a very productive mediation, took all day from nine o’clock to five o’clock and we reached an agreement and nobody came into contact with anybody and it was just…

Leanne Abela:
And you avoided court because you had a court listing.

Joe Schepis:
COVID has taught us all a lesson.

Leanne Abela:
Yes. Yes.

Joe Schepis:
A way of achieving a result in a different means.

Leanne Abela:
And doing it with safety measures in place. So there are many different models and so people are much more open to all these different models now.

Joe Schepis:
And there’s different, obviously, types of mediation. You’ve got the community-based mediation where you go to the community-based center, family dispute resolution centers and the like. The problem we find with those is that they take a little bit longer.

Leanne Abela:
There’s a queue.

Joe Schepis:
That can take-

Leanne Abela:
There’s a queue, yeah.

Joe Schepis:
… three to six months before they do the intake and then you have the first mediation session. You can go to, what I call the semi-private ones with Relationship Australia that are fantastic. Or if it’s urgent and you need something done urgently, you can go to a private mediator. They’re obviously more expensive, but that’s an alternative. Different horses for different courses, depends what you need.

Leanne Abela:
I’ve also had clients… Some of the reasons you’ll send somebody to a private mediator urgently from the outset is because they’ll need a Section 60I certificate, which is a certificate you need to be able to issue proceedings. But I’ve also had clients who have wanted to do a property mediation before anybody’s issued proceedings, before anybody’s done any court documentation to see if they can resolve it using the model of the solicitors, the clients and a mediator.

Joe Schepis:
And the mediator, I know that you just recently did one, was a former judge.

Leanne Abela:
That’s right.

Joe Schepis:
The former judge, who was a judge in the family court for a good 20 years, he was engaged to privately mediate and paid for the day to have his input. And what a mediator does is they help the parties understand the issues that are at stake, the options available to them and the mediator tests both cases to see what the weaknesses or strengths are of each and encourages them, through their lawyers, obviously there’s lawyers there to give independent advice, to reach an agreement. It’s a very, very worthwhile process.

Leanne Abela:
Very worthwhile process. Lots of people, if you’ve reached a stalemate in your negotiations, lots of people find that by having a mediator there is a real opportunity to break that impasse and reach a resolution.

Joe Schepis:
And you don’t always reach a resolution.

Leanne Abela:
No, no.

Joe Schepis:
Sometimes you have negotiations and you still have a disagreement about an issue, but sometimes you reach an agreement that we’ve agreed on these things, this is the one or two issues that we can’t agree on, but you’ll agree on a method to resolve those issues. It might be engaging a single expert valuer to look at a particular issue. We had one where we got a tax expert, who’s not only a trained tax lawyer, but he’s also a trained accountant to look at it and particularly issue advice about tax consequences. And then you’ve got a mechanism where you can reach an agreement to go and do something and hopefully bring that issue to the table, resolve it, and then open the door to an overall result of reaching agreement on everything.

Leanne Abela:
Often the mediator will reality test somebody’s opinion or somebody’s advice, and maybe give their own opinion. The mediator is not there to give the judgment or to make the decision for the parties, but very, very useful in trying to give a reality check. Particularly if somebody’s got, unfortunately, or not the right advice. And so the media is very useful there.

Joe Schepis:
And even if you don’t reach an agreement, at the end of the day if you give a mediation and go you’ll know you’ve given it everything. You’ve tried your best to resolve the matter and then if you can’t reach an agreement, which are very, very few cases, you go to the judge and the judge will make a call and bring the matter to an end.

Leanne Abela:
But at least you’ve narrowed the issues, right?

Joe Schepis:
Absolutely.

Leanne Abela:
You’ve narrowed the issue so it’s definitely worth it.

Joe Schepis:
And whatever is said, whatever offers are made at mediation are privileged and confidential. Whatever concessions are made in mediation, nobody can repeat those matters in court.

Leanne Abela:
Yeah. We recently had a matter where we made a particular offer to mediation and a couple of weeks later, the other side decided they wanted to accept it. And we said, “No, that was the offer that was made at mediation, the offer’s off the table. Off we go to court.” Because we actually made that concession then and there, but in the meantime we’d had to prepare documents and so the client had been put to a significant expense, so the offer was off the table.

Joe Schepis:
Yeah. Fair enough. I think that generally speaking, we’ve found mediation to be a very useful. It’s only been around for 20 years so it’s relatively new in the overall scheme of our legal system.

Leanne Abela:
And there are very different types of mediation that you need to be aware of. Those that include children, that are child inclusive mediation. Those that don’t include children. Mediation that occurs, as Joe said, at different locations, by different organizations.

Joe Schepis:
Some with lawyers, some without lawyers.

Leanne Abela:
Some with lawyers, without. Some with barristers as mediators, some with other people as mediators. Some with child focused mediation, property focused mediation, mediation before court proceedings or compulsory mediation after court proceedings. Because if you do go to court, there will be compulsory mediation that will be ordered.

Joe Schepis:
It’s important at the very get go you look at all the issues, you decide what’s best for you and you put those matters in place so that you have the right mediation to get a result as quickly as you can or to at least know that you’ve explored that opportunity.

Leanne Abela:
And that you don’t confuse mediation with counseling because I have a lot of clients who say that, “I’m not going to counseling.” I said, “I didn’t say counseling.”

Joe Schepis:
Marriage guidance counseling.

Leanne Abela:
I know you don’t want to get back together with your partner, but mediation is a different model. That’s often very confusing for people.

Joe Schepis:
They do get confused. Absolutely.

Leanne Abela:
If you want to get some advice in relation to mediation or co-prepared to mediation, we can give the advice so that you go to mediation fully equipped.
Just contact our office. Pearson’s lawyers…

Joe Schepis:
1300 699 688.

Leanne Abela:
For your free appointment.

Joe Schepis:
And know where you stand. Thank you for listening.

Leanne Abela:
Thank you.

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