Legally Assisted Culturally Diverse Mediation in a Collaborative Setting - a Practitioner’s Experience

Legally assisted culturally diverse mediation in a collaborative setting

A PRACTITIONER’SExPERIENCE

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.

Significantly the lawyers spent a lot of time discussing and negotiating things that weren’t strictly legal issues. This is likely to give non-family lawyers the shivers. But as every family lawyer knows, people and families don’t always fit into the legislative boundaries.

Having participated in all these processes, there is no doubt, with motivated lawyers, mediation as a negotiated agreement can be highly successful and sound agreements can be quickly drafted throughout the day. It is however significantly more expensive and out of reach for many. With a highly experienced and accredited mediator, two lawyers and the lengthy preparation involved, while cheaper than heading down to Family Court, MSC is financially impossible for the majority. Private mediation is significantly cheaper – around $2,500-$3,000 with a family lawyer, FDRP mediator. Which is a comparative bargain but still prohibitive for many who have no option but to use the free and lowcost government services, which inevitably have long wait lists. Cost is a particular issue in the case of parenting matters where there is no pot of gold at the end of the settlement process. Sitting alongside this is collaborative practice which also suffers from its lack of availability – firstly because many don’t understand the process or don’t know about it; secondly because old school lawyering has trouble with the concept of lawyers working together towards a common goal; and thirdly because, again it’s financially out of reach for many clients.

Mediation Meets Collaborative

Clients who were invited to participate in LACA mediations were not born in Australia – or at least one parent was overseas born – or were Aboriginal. Often the parties’ marriages had been defined by very traditional roles of the male breadwinner and female homemaker and parent. Navigating a child-focussed equal shared co-parenting arrangement initially presented in many of these cases as an almost insurmountable hurdle.

Often parties would present with extremely low expectations of reaching a negotiated agreement, balanced against an unrealistic expectation of what the Family Court would do for them.

These clients primarily needed assistance and advice. They needed a sound and realistic perspective. And then they needed to be enabled to present their position, in their own words, in open discussion. They didn’t need advocacy. Significantly the lawyers spent a lot of time discussing and negotiating things that weren’t strictly legal issues. This is likely to give non-family lawyers the shivers. But as every family lawyer knows, people and families don’t always fit into the legislative boundaries. The law will apply to different families in different ways. Being a good family lawyer is about being a creative problem solver – and then knowing how to make sure agreements stick. Working collaboratively with another family lawyer to achieve this is enormously rewarding. Mediators can’t always do that, and they certainly can’t reign a client in with sobering legal advice. Of all the LACA mediations I was involved with, less than 5 requested certificates to go to Court at the end of the second session.

It’s too early to predict the overall outcomes of all those mediations – parenting is an ever-changing and evolving job and doing it with someone you aren’t in a relationship with can be really tough. But if the first experience people have of dispute resolution post separation is a positive one, I strongly believe we have taken the first step in setting them on a clearer path forward. If they’ve had a conversation and come to an agreement once, they can do it again. It’s another chance for those kids to have the best possible shot at a healthy relationship with both their parents. And it’s an opportunity to reshape the reputation of alternative family dispute resolution.

Case Study 1

The father in this mediation was Sri Lankan and the mother Australian. They had a brief relationship. The child was less than one year old. The father only wanted to talk about child support. He was paying it and wanted to know what it was being spent on. He worked long hours on an on-call basis and spent no time with the child. It was clear the father cared for the child but felt the only legitimate role he had was as the financial provider. He was resigned to not being part of the child’s life. But he wanted the mother to be accountable for the money he gave her. He wanted to know it was being saved and specifically what it was being spent on. It quickly became apparent child support represented the only influence the father could see in his child’s life.

From a legal perspective it was a no brainer. Child support is legislatively controlled, we can’t put it in agreements, she doesn’t have to tell you what she spends it on. But recognizing what it stood for in this case was key to moving this father forward. By discussing why it was important to him it opened him up to considering what was important in his relationship with his child. As his lawyer I would have struggled to get him there without the help of a mediator challenging him. The mediator on her own may have struggled to equally balance the voice of both parties in the room. The other lawyer may have resorted to the law in the face of some of my client’s wilder statements. As a team we had the chance to test what we suspected was underlying his one-track negotiation. We challenged each other on our client’s perspectives. We did five joint sessions with this couple. After the first session we never talked about money. Along the way we inevitably got a bit caught up in technicalities – who takes the sunscreen to swimming lessons? – but over the year we mediated with this couple, the child grew up a bit, the mother was able to relent her fierce hold and the father was able to build confidence in his ability to parent the child and to be involved.

Case Study 2

The parents had an arranged marriage in the Middle East, then moved to Australia. Both were very involved in their local religious community and regularly attended social functions with their community on the weekend. Since separation the parents had started doing this separately, with different communities.

The child was under three years old and the father spent no time with the child. In the first joint session the father was angry, claiming the mother was withholding his child. The father had little idea of how to look after the child and had trouble expressing himself. He quite openly said his mother would look after the child when she was with him and he could not understand any problem with this. Both parties slipped from child focus very quickly and the mediator had to stop regularly to reframe and refocus the parties. It seemed at times that the differences would be insurmountable. It appeared neither were focusing on what the child needed, rather they were fighting out past anger. As lawyers in the room it may have felt natural to “rise” to the level of anger that was being expressed, and spring to our client’s “defence”. Will the child be safe with the father or mother-in-law? Would a

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.

Court judge the risk as being great enough to prevent the father seeing the child altogether? Let’s ask it! None of which gave the parties a positive path forward. In this case neither parent had been unhappy in their parenting role when they were married. They just really didn’t like each other. So the mediator moved discussion to how those roles could continue for each of them.

Before separation they had both spent a day on the weekend with their religious community in separate groups of friends. This was a very social day where everyone attended, the children played games and food was served all day. All agreed the child loved this occasion.

The parents now attended different venues and a suggestion was put that the mother’s mother would attend with the Father and child on Saturdays. (The grandmother had to attend as the father would not change the child’s nappies). This worked well. The grandmother delivered a bag of food and supplies to the father and then watched the child during the day. The father sat with his friends as usual. The child played with other children.

This proposal had been put by one of the lawyers and to the other professionals in the room it had seemed a bit left field – where’s the shared care? Where’s the substantial and significant time? Does this child have an equal relationship with each of its parents? It’s unlikely to have been what a court would have ordered.

It’s also what I consider one of the most successful mediations on this program and ultimately represents what we are trying to achieve in mediation – for parties to decide for themselves what is best for their family. For this family everyone was able to settle back into their traditional roles. Dad was able to save face with his friends – and at the same time spend time with his child exactly the same way he always had. Mum knew the child was safe and it was exactly what the child would be doing if her parents weren’t separated.

Case Study 3

Both parties were from Muslim families in the UAE. The mother had a history of mental illness and the father was unsympathetic to this. He presented with very low expectations for a mediated outcome. Prior to separation the mother had been a very hands-on parent and undertook the majority of the parenting duties. There had been long absences by the father with the mother and child living in a different country. Now, a number of years post separation, the mother wanted the father to take on what looked to her like equal shared parental responsibility. The father felt he had lost out on the property settlement and the consequence was the mother should take all the parental responsibility. She had fought for more than 50% of the property pool so, in the father’s opinion, that meant the majority of parental responsibility went with it.

Family lawyers please sit down. We all understood these were quite separate legal issues. The father was adamant.

He paid regular child support and “was meeting his legal obligations”. Equally he strongly felt he “had a right” to see his child whenever the father was available.

Many LACA clients came from traditional backgrounds where the parties had clearly defined roles. Mum looked after the children and Dad made the money. When these families separated it became very difficult for each party to embrace the new aspects of the other party’s role. The mother usually had little choice but to take on more financial responsibility post separation, but for the fathers from these traditional cultures, taking on more of the “mothering role” – school pickups, extra curricular activities, homework, birthday parties at friends’ houses – was incomprehensible. We talked to the father about the type of role he wanted to have in his son’s life – he wanted to be a positive influence, he wanted his son to feel safe and confide in him, he wanted his son to have academic success and to do well. It became clear that “weekend dad” was also more likely to be superficial dad which wasn’t actually what dad wanted at all. Suddenly there was something valuable to the father over and above his perceived injustice in relation to the property settlement. Both parties here had the funds to take the matter to Court and were initially resolved to this course of action. But there was no way either of them was going to achieve what they each needed via rigid court orders. They needed a team who could help them put aside their “legal rights” to see and hear that what their child needed was what they both most wanted. And no matter how hard a mediator tries to do that, hearing it from your lawyer makes a big difference.

End notes

1 Susan Hewitt has worked as a lawyer, mediator and journalist. She is a trained collaborative lawyer, an

NMAS accredited family law mediator and accredited

FDRP. She is the Director and Principal of Bright Side

Family Law & Mediation in Subiaco, Western Australia.