Legally assisted culturally diverse mediation in a collaborative setting A practitioner’s experience By Susan Hewitt
Director & Principal, Bright Side Family Law
Mediation Trial Mediation can be an incredibly powerful alternative to Court – especially in circumstances of relationship breakdown where young children are involved. And as the Family Court of Western Australia trials new ways to engage parties in mediation and alternative dispute resolution, the numbers of accredited mediators and Family Dispute Resolution Practitioners are growing. But these practitioners continue to face the hurdle of “selling” mediation to clients, and convincing colleagues that mediation can not only dramatically change the coparenting path for families but that guiding parents to make these decisions themselves can have an incredibly positive outcome. In a newly evolving Family Law environment where there must be at least an attempt to mediate in parenting matters and there is push for a similar path in property matters, mediation has to be considered as more than simply ticking a box before proceeding to Court. It needs to be seen as a genuine and feasible option for dispute resolution, no matter how intractable the parties appear. A recent nationally funded mediation program run through Relationships Australia provided an unexpected opportunity to add a new dimension to mediation while giving low socio-economic clients access to a collaborative process at a fraction of the private cost. The LACA – legally assisted, culturally appropriate – mediation program was funded as a trial by the Federal Government and ended on 30 June 2020. Despite an international pandemic, the program was able to successfully pivot and from April to June 2020 all mediations were run by telephone and video conference with only a very small number cancelled. I participated as a lawyer in more than 70 of these mediations. Lawyers were chosen from a panel of lawyers with collaborative practice or mediation training, or in many cases, both. Clients were allocated a lawyer and attended an initial legal consultation. There would then usually be two or three, two-hour joint sessions, with each client and their lawyer, and an RA mediator. For those of us with collaborative training it was a bit of a gift – a chance to participate in collaborative meetings much more
regularly than we are seeing in private practice. The uptake of collaborative matters here still lags a long way behind our colleagues on the East Coast and collaborative practice is still a bit of a grey area for many WA family lawyers. The criticism most regularly levelled at it along the lines of “it’s too expensive”, “it’s overkill” or that “it’s just a fancy name for what we do anyway”. The vast majority of family lawyers I come across in private practice understand the importance of alternative options to the Family Court. They understand the emotional and financial cost to families of engaging in protracted court proceedings. Many are settlement focused and practical from the outset and happy to discuss or engage in informal conferencing which often makes all of our work more rewarding. But that’s different to true collaborative practice. The essence of a collaborative matter is about a team of professionals – most importantly two lawyers, but others as needed – working with a former couple on a solution to the family problem. Meetings and advice are given openly amongst the team. The adversarial nature of a more traditional legal matter is completely removed, with the professionals advocating for a practical, achievable family solution, over and above the “best deal” for their client. It doesn’t work for everyone and, yes, the very nature of having a number of professionals in one room makes it expensive. It’s certainly out of reach for most RA clients. But a collaborative mindset, in combination with mediation, can deliver more efficient and ultimately more economical outcomes. Where clients understand the legal principles, have appropriate advice and then any agreements reached are correctly drafted – there is not only the likelihood of greater adherence to agreements but clients see success in a negotiated outcome and the potential that creates for future coparenting. LACA clients paid a token low fee or were exempt from fees. The lawyers were paid at standard Legal Aid rates. On my rough calculations the vast majority of mediations on the LACA program were delivered at around 15% of what it would have cost these clients to engage two lawyers and a private mediator to all then attend a series of joint meetings.
Mediation Versus Collaborative Practice As a collaborative family lawyer and mediator my practice focusses on teams1 and on finding solutions for families outside of the traditional legal process. Bright Side conducts private mediations, amicable separations and collaborative family law. For the most part our private mediations are not attended by lawyers. Anecdotally, this seems more commonplace in Western Australia than in other parts of the country and in WA there is not (yet) a strong culture, as seen in Melbourne or Sydney, of barristers running mediations only with lawyers in attendance alongside their clients. It is also a reflection of how clients come to mediation – off their own bat or after having engaged a lawyer – and the very real issue of cost. Generally family law mediation in WA seems to fall into one of the following broad categories: Government funded and not-for-profit organisations, such as Relationships Australia, Anglicare and some Community Legal Centres offer free or low-fee options for low-income clients. Clients know they must attend mediation before making an application to the Family Court and these are seen as a necessary step in that process; Private mediators who may be, but are often not, family lawyers. Many of these are mediators with a background in psychology, counselling or family therapy focusing on FDRP. Family lawyer mediators can’t give legal advice to either party, but can mediate within the bounds of what a Court would be likely to decide and this can help reduce overall legal fees outside of the mediation process; Mediation Style Conferencing, this is the Rolls Royce of mediation and often the preference of clients already engaged with a legal team. MSC is a very distinct style of mediation. A former Family Court Judge, Registrar or senior family lawyer as mediator receives papers from the parties’ lawyers (in the same format as particulars for a court-held conciliation conference), and the mediation is then held much in the manner of a private conciliation conference.
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