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Family Court Judges to Mediate cases

The Federal Circuit Court of Australia operating in its Family Law Jurisdiction has released Practice Direction No. 1 of 2019 – Judicial mediations in family law matters which sets out arrangements for the conduct of Judicial Mediations.

Criteria for suitability for Judicial Mediation

Matters suitable for Judicial Mediation include the following:

  • Both parties are legally represented;
  • Where one or both parties are self-represented and the docket Judge determines the matter is suitable for judicial mediation;
  • Property disputes;
  • Parenting disputes where there is no  allegation of  serious risk and/or family violence;
  • Appropriate child support matters;
  • Compliance with orders for a prior unsuccessful private mediation;
  • A risk that the costs and time of the trial will be disproportionate to the subject matter of the dispute;
  • Any other matters identified as suitable, by the docket Judge.

Application by parties for Judicial Mediation

A party seeking a Judicial Mediation, subject to notification of all other parties to the proceeding, may make an oral application in Court for a mediation or apply in writing to the Docket Judge in Chambers.

Any application in writing must be supported by a brief summary, in bullet point format, addressing why the matter is suitable for Judicial Mediation.

Within 14 days of receipt of an application for Judicial Mediation by another party to the proceeding, a party must:

  • If consenting to Judicial Mediation, forward to the chambers of the Docket Judge a consent to the mediation.
  • If opposing Judicial Mediation, forward to the chambers of the Docket Judge, a brief summary in bullet point format, addressing why the matter is not suitable for Judicial Mediation.

If the parties consent, the application for Judicial Mediation will be determined on the papers, thereby avoiding the need for an oral hearing of the application.

Judicial Mediator

The Judicial Mediator may not be the docket Judge.  Where both Judges consent, the docket Judge may refer any suitable proceeding in her or his docket for Judicial Mediation by another Judge.

Preparation for Judicial Mediation

The docket Judge will make relevant procedural orders for the Judicial Mediation.

In addition to any matter addressed in specific orders of the docket Judge, the following preparation will be required to be completed prior to Judicial Mediation.
Property disputes:

  • A list of all relevant applications, responses, affidavits and financial statements filed in the proceeding;
  • A balance sheet of agreed and disputed assets and liabilities;
  • A Case Summary addressing s.79/s.90SM contributions and s.75(2)/s.90SF(2) needs;
  • An indexed and paginated Court Book of copies of all relevant discovered or subpoenaed documents;
  • Copies of any valuations of any asset, financial resource or superannuation interest which are in dispute;
  • Written confirmation that a superannuation trustee has been accorded procedural fairness, if a superannuation splitting order is sought;
  • A draft minute of proposed orders.

Parenting disputes

  • A list of all relevant applications, responses, affidavits and financial statements filed in the proceeding;
  • A Case Summary addressing relevant s.60CC factors;
  • Copies of all family reports, s.11F Memorandum, psychiatric and risk assessments, if not previously filed with/available to the Court;
  • An indexed and paginated Court Book of copies of all relevant discovered or subpoenaed documents;
  • A draft minute of proposed orders;
  • Copies of any intervention orders currently in place.

Attendance at Judicial Mediation

All parties and their legal representatives must personally attend the Judicial Mediation. Participation via video link or telephone will only be permitted in exceptional circumstances.

The legal representatives must have full authority of the parties to settle the proceeding.

Conduct of Judicial Mediation

The Judicial Mediator shall not, without the express approval of all parties to the mediation:

  • Meet individually with a party and relevant legal representatives;
  • Disclose information provided to a party in a separate session to the other party.

Subject to the preceding paragraphs, the conduct of the Judicial Mediation shall be entirely at the discretion of the Judicial Mediator.

Confidentiality

Parties and their legal representatives must protect the confidentiality of the mediation and are referred to s.131 of the Evidence Act 1995 (Cth).

The Judge conducting the Judicial Mediation will return to the parties or destroy all material provided to the Judge or the Court, whilst preparing for or conducting the Judicial Mediation.

Listing for trial subsequent to Judicial Mediation

No Judge of the Court will hear and determine any matter in which the Judge has acted as Mediator, or where the Judge has become aware of any confidential information pertaining to the dispute between the parties.

If a proceeding fails to resolve at a Judicial Mediation, the matter will be referred to the docket Judge for further directions, if required, and trial.


The Foreseeable Problems with Judicial Mediation

In Australia there is the problem of judges going into private mediation sessions with litigants and lawyers who appear before them regularly and discussing matters personal to those litigants directly with those litigants.

This is a problem of perception. It raises the question of whether the
appearance of independence and impartiality of a judge who goes into these private sessions is compromised. Mediation by judges is not a  popular process with judges. It may be suggested that this “problem” is more theoretical than real. It is too early to make a proper assessment of that suggestion because judicial mediation in Australia has only recently become more widely adopted. It was introduced in the Federal Court of Australia some years ago, however it proved to be most unpopular and is rarely used in that court these days.

The other potential problem that can arise in judicial mediation is the risk that one or more of the parties may try to use the mediation as a “dry run” of their case (referred to later) and for the purpose of obtaining information that might otherwise not be available to them in the litigation. This would be inconsistent with that party’s obligation to attend the mediation and take part in the process in “good faith”. However in the rare instances that it may happen it would involve the judicial officer mediator having to make
an assessment in private of a party’s and their lawyers’ motives for
reacting in the particular way to the various offers that may be transmitted by the judge from the other side.

There is a danger of the opposing party becoming aware of information during an unsuccessful mediation and then seeking to gather evidence to prove the matter the subject of the information received if the matter goes to trial. This is permissible. Accordingly parties who attend mediation are usually very careful to ensure that they limit their disclosures to information they are happy to be disclosed at trial should the mediation be unsuccessful.

Finally it is important to note that with Judicial Mediation the Court is committed to the resolution of disputes in the most efficient manner possible and in particular with the assistance of private mediations, where appropriate.

Judicial Mediation is not intended to be a substitute for private mediation conducted by appropriately qualified mediators, but may be an option for appropriate matters. It is expected that practitioners and parties will exhaust all mediation alternatives, prior to judicial mediation.

If you would like a free, no obligation consultation with a nationally qualified mediator simply complete the form below and we will call you to discuss whether mediation could help you.

Footnote/Bibliography
Continue reading Family Court Judges to Mediate cases

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Costs orders and litigation – beware unpredictable outcomes and always take settlement offers seriously

An article by Zohra Ali of Stacklaw:

I was recently involved in a case where someone was offered half a million dollars as settlement, declined that offer, lost his case in the Supreme Court and had a costs order made against him. He subsequently decided to make an application to the Court of Appeal, but he also lost the appeal and had another costs order made against him.

The costs of the two proceedings together are likely to equate to at least $250,000. This person has gone from potentially gaining half a million dollars to losing a quarter of a million.

“No win no fee” arrangements can lead to overlooking risk of adverse costs orders

The solicitors who ran this case ran it on a no win no fee basis. This means that if the client does not win the case, the solicitors do not charge any professional fees.

The no win no fee method can be quite enticing and useful for those who do not have the funds to engage in litigation but may have a strong case. The downside in these situations however, is that the risk of having to pay the other party’s costs often gets overlooked.

Outcome of litigation inherently unpredictable

Anytime someone engages in litigation, they need to consider any settlement offers received carefully and accept the fact that no matter how prepared you are or how strong a case you may feel you have, there is always the risk that you might not win.

And if you do not win, you can be subject to a hefty costs order that could completely change your life, and not for the better.

How can I still lose when my legal advisers are telling me I have a strong case?

This is a good question, and there are a number of reasons.

You may have a strong case, but you might be called to the stand to give evidence. If this happens, you might not be a good witness. Your solicitor is limited in how much guidance he or she can give you with respect to what to say in the witness box, as there is a fine ethical line between witness preparation and “witness coaching”.

Also, being in the witness box can be scary, nerve wracking and emotionally draining. These feelings can all impact negatively on how you answer questions and how you present yourself in the witness box. If you exude negative emotions or rub the judge up the wrong way, you could be inadvertently harming your own case.

All parties to litigation typically believe they have a strong case

Going to a final hearing is a gamble. You are placing the decision-making power into the hands of a third party, and hoping that on the basis of the evidence, they will make a decision in your favour.

While your evidence and claim may be strong, do not forget that the other party would not have taken the matter this far if they did not also believe they have a strong case.

Subconscious bias can cloud objectivity

Humans can declare objectivity in their decision making and can even appear to be objective. However, we cannot control the subjective influence our subconscious mind can have on a decision.

Sometimes we cannot consciously recognise our own biases regarding particular characteristics and/or behaviours. How can we ensure objectivity with respect to such biases if we do not even know that they exist?

The same applies to judges. You do not know the judge’s history, their story or their experiences. If the judge had a negative experience in the past and you bear any kind of resemblance or share a mannerism with someone who may have been the cause of that negative experience, this could be the cause of the downfall of your entire case.

At what point do judges decide who wins the case?

There is a theory among lawyers that judges have already made their decision fairly early on in the final hearing, and then work backwards to justify their decision in preparing judgment. While I do not know if it is true, I have noticed that whenever I read our firm’s fortnightly “Which case won?” newsletters, I instinctively lean towards a specific response without necessarily being familiar with the legalities of the case.

The majority of the time, the response I select is correct. Remember, judges review and become familiar with your claim before the final trial. The final trial is simply an opportunity for each party to present evidence and to present submissions, but if the judge already has some preconceived views about your claim, it may be difficult to persuade him or her to adopt a different viewpoint, especially if you are not aware of those preconceived views.

Different types of costs orders

If you have a case which is going to trial, you should become familiar with the different types of costs orders so that you know what kind of costs orders you may be facing.

Scaled costs are costs which are regulated by law and capped at a certain amount. Scaled costs are common in certain debt recovery matters where default judgment is given in favour of the plaintiff because the defendant never responded or filed a defence to the claim.

Solicitor/client costs are the costs that you pay to your lawyer. Unless you are in a no win no fee arrangement, these costs are payable to your lawyer regardless of the outcome of your case. Normally you would pay these costs on a weekly or monthly basis, depending on your solicitor’s billing schedule.

Party/party costs are the costs which the winning party in the case can recover from the unsuccessful party, in the event that an ordinary costs order has been made. The purpose of these orders is to compensate the winning party for their solicitor/client costs.

Indemnity costs are the costs payable to a successful party where the successful party has been subjected to unnecessary costs as a direct result of the conduct of the other party. The awarding of an indemnity costs order is made by the court upon an application from the aggrieved party.

An example of a circumstance where an indemnity costs order may be made is when a party has appealed the decision of a judge after being unsuccessful in their case, and subsequently loses that case too (as in the example given earlier).

Possible dire financial consequences of a costs order

If you receive a costs order against you, the costs order is automatically considered to be a court judgment. Bankruptcy notices can be served on the basis of the judgment.

If you are unable to negotiate a deal with the winning party, you could end up bankrupt. I say this because matters which go to a final hearing usually incur costs of $100,000 to $150,000 per party, depending on the complexity of the case.

If you appeal the decision and lose that too, as in the example at the beginning of this article, then you can add another hundred thousand and you are looking at $250,000 in costs being payable. Most people do not have $250,000 lying around.

Unless you are able to come up with that money (which could even mean needing to sell your house), you could be made bankrupt and most of your assets may vest into an appointed bankruptcy trustee who will then liquify your assets to satisfy creditor debts.

Emotional consequences of a costs order

Aside from the financial consequences of a costs order, there are significant emotional consequences as well. A costs order can put a strain on you and your family, and potentially cause marital problems.

It can cause you to feel resentment, regret and hatred. It can also cause you physical distress and real depression.

Bad reasons for going to court

Going to court and going to a final hearing is a serious matter with serious financial consequences. Do not let matters of principle, a misdirected search for justice or greed be the motivation for going to court.

Listen to your solicitors carefully, take settlement offers seriously and always be commercial and practical in your decision making. Do not let your heart rule your head, or you could end up in a far worse position than you were in when you embarked on the litigation.

Mediation
Mediation in Civil disputes can be invoked at any time and as many times as the parties like.  The process is without prejudice to the case and statistics show around 60% of cases can be resolved by the parties themselves through facilitative mediation.

Even where mediation is not successful in resolving the entire dispute it can narrow the scope of the dispute and save you time and money.

One thing that is for sure, is a mediated resolution to the case is something you will be happy with, because in the end, despite being facilitated by a professional mediator, it is your decision.

To find out more fill in this form and a qualified mediator will contact you for a no obligation free initial consultation to see if mediation is suitable for you.

Source : Stack Law

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Family lawyers urged to steer clients towards private mediation and now the Family Court’s has a blitz to clear its three-year backlog of cases

In the years I have practised in family law, I have become convinced of the many benefits of private mediation in resolving property and parenting disputes and enabling couples who have separated to come to a fair and balanced agreement about their future arrangements, writes Tim Couch.

In hearings this month, the Family and Federal Circuit Courts are encouraging parties to negotiate resolutions independently and remove their disputes from the trial list.

In my opinion, any family lawyer who genuinely wants to help their clients will encourage them to pursue this course, rather than to make a beeline for court.

As anyone who practises in family law will be aware, most family law registries are presently experiencing unprecedented delays in determining cases. This is in part a result of an increased number of litigants and an insufficient number of judges. Our judges work tirelessly to resolve family law disputes as fairly and as efficiently as they can. But there are only so many hours in the day.

Because the system is overloaded with cases, many litigants experience delays of up to 18 months or even longer before their case is determined at a final hearing. This is becoming the norm in a number of registries. The longer the delay, the longer the uncertainty endured by the client. Private mediation provides a potential shortcut through this uncertainty.

Mediators, however, say the courts must do more to connect struggling families with qualified experts, not leave them to figure it out on their own.

Adelaide-based mediator Alison Shaw said families were left relying on lawyers who may lack mediation accreditation, putting them at risk of “being failed a second time”.

“People need someone who is actually committed to and confident in the mediation process, not someone who thinks they can do it because they’re a lawyer,” she said.

“If mediation fails, all these people will have to look forward to is another three-year wait because they have hopped off the litigation conveyor belt.”

A second advantage of private mediation is that it gives the client more control over the process. In the Family Law Courts, the judge controls and manages the court process from start to finish. The court determines who will hear the case, and when.

By contrast, a private mediator can be chosen by the client, their former partner and their respective solicitors.

A third advantage of private mediation is its cost-effectiveness. Litigating a family law dispute is rarely a cheap exercise. There is almost always a mountain of legal work involved in getting a case into court and presenting it in the best possible way in the hope of achieving a sound outcome. Not to mention regular court appearances.

This usually takes hours and hours of effort and preparation on the part of the solicitor, resulting in significant legal fees. By the time of the final hearing, the legal bill can amount to tens of thousands of dollars [for each party], and possibly more. A successful mediation, on the other hand, will only cost a tiny fraction of this amount, and if successful, could achieve the same or a similar result.

Finally, a failed mediation is rarely a waste of time. Even if it has not succeeded in resolving the dispute in its entirety, the matters that were in dispute at the start of the mediation have usually narrowed dramatically. Often with some further reflection and legal advice after the mediation, it may be possible to reach an agreement on any unresolved points without having to commence court proceedings.

If that’s not possible, the matters left for the court to determine have often been sharply reduced. In turn, less court time should be required to determine the case – maybe two days instead of five or six or more. This can often mean that the court can find the time to determine the case much sooner. And the chances of settling the case before a final hearing have likely increased as well.

In my experience, when couples opt to take their dispute to the Family Law Courts, they do not necessarily believe that this course of action will produce the best possible result.

Rather, warring couples can be motivated by anger and the desire to make their ex-partner suffer. It’s only human nature to long for vengeance in circumstances where a relationship sours and we feel rejected, slighted, humiliated or betrayed. It’s a natural response.

Sometimes the desire to keep fighting is not even motivated by concerns over unfair apportionment of money or property or time with children. Instead it can be based on an entirely emotional impulse that can border on obsession – for example, a client may be convinced that their ex had an extramarital affair and is determined somehow to “make them pay”.

Such impulses may be understandable, but they definitely work against the client’s best interests. I do my utmost to make clients whose anger has eclipsed their reason understand that no court is ever going to give them everything they want, while leaving their ex with nothing.

A court will always try to make decisions that are as fair to all parties as possible, so what the client is really facing is a choice between two types of compromise – the first reached voluntarily, relatively quickly and relatively cheaply, with both parties having input into the details of the arrangements; the second being a court-imposed compromise in which all the details have been determined by a judge at much greater expense and after a much longer delay. And quite often, neither party is entirely happy with the outcome.

As I see it, clients wanting to fight their ex and make them suffer is not the only obstacle to private mediation. The other obstacle can often be the approach adopted by the lawyers they retain. Hand on heart, I have to say that there are lawyers who will not even bother to try to steer their clients towards compromise, preferring to sit back and allow the flames of hostility to burn in the knowledge that a protracted legal battle will generate far more in legal fees.

A Lawyers Perspective

Some practitioners are notorious for letting a family law matter unnecessarily drag on for months and sometimes years before finally giving strong advice to their client on the steps of the court on the day of the final hearing to settle. It is hard to think of a reason for such an approach other than the desire to drive up the legal bill.

Yes, it’s true that if you encourage your client to attend private mediation and that mediation is successful, you will earn much less in professional costs than you would from a protracted court battle.

But ask yourself, why did you become a lawyer? Was it altruism, so that you could use your legal skills to help people in the most efficient and effective way possible? Or was it greed, so that you could extract every possible last cent from the general public, individually and collectively?

I appreciate that private mediation will not be suitable in all family law cases, and for a variety of reasons. However, I think it is a fair statement to say that private mediation will be suitable in the vast majority of family law cases.

Family lawyers are unlikely to ever run out of work. Business will always be steady, if not busy. As long as the sun continues to come up in the morning, couples will separate, and will need help to disentangle their lives from one another.

From a perspective of a party to a family law dispute

You need to ask yourself, do you really want to run the gauntlet of what is the Family Law Courts, the costs associated with it, the delays now going on 3 years with some Lawyers part of the cause of those delays only to tell you when you reach the trial date to settle, if you think its time to take control of your life, why not try private mediation.

To find out how mediation could help resolve your conflict, fill in the form below with your details and a qualified Mediator will contact you for a free no obligation initial consultation.

Sources : Lawyers Weekly by Tim Couch is a lawyer in the family law team at Stacks Law Firm,  The Advertiser (Adelaide Now), Danny Jovica – NMAS Accredited Mediator.

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Why some women walk away from the family court

On the surface, their two-decade marriage might have looked a success: a large home, prestigious cars in the driveway and a gaggle of children growing fast.

But when Sarah’s* husband returned home each day from his high-paid job in Melbourne’s business district, she bore the brunt of his frustration and violence.

He urinated on her, cut her hair, assaulted her and forced her to sleep on couch cushions on the floor rather have her “dumb, dirty, stupid” presence in their bed.

When Sarah eventually fled – not a dollar to her name – and took out a restraining order, her wealthy husband warned she was “never going to get a cent”.

It is at this stage that Sarah could have considered Mediation as a mechanism to bring her husband to the negotiating table, mediation today can be conducted in a safe-space, where the parties can be in separate rooms in case of fear of violence and intimidation.  There are also online facilities available where it can be conducted from the safety of your own home.

Many disadvantaged women simply walk away from their entitlement to a fair division of property when relationships end because of a lack of quick, affordable ways to resolve family law disputes, according to new research from the Women’s Legal Service Victoria, launched on the eve of International Women’s Day.

A quick affordable method to resolve this could have been Mediation, had Sarah known of the options available to her, even if the matter had already gone to compulsory family mediation and a 60i certificate had been issued, there was nothing preventing Sarah from taking control of her life and invoking private mediation, this time with a qualified Mediator of her choice, the mediation would still be unbiased and facilitated in a neutral capacity but at least Sarah could feel comfortable with the person doing the mediation.

Dividing assets, like superannuation for example, through the family law system is far too complex for someone with no legal training, the service’s lawyers say.

Researchers interviewed about 50 clients who had small amounts of property to divide up after separation, with the average size of settlements about $71,000.

But these relatively modest sums could make a crucial difference to the lives of these women, who were often battling financial hardship.

They told heartbreaking stories of being admitted to hospital from court-related stress, or spending a year in a court battle, having to interpret legal documents with a dictionary in one hand.

Even before matters reached court, two-thirds of women had their claims delayed because their ex-partners were unwilling to make a full and frank disclosures of their financial position.

This meant they had to begin onerous court proceedings, rather than settle matters through negotiation,  however once more, appropriate dispute resolution through Mediation may have helped achieve a faster result.  Even if there had been a failed attempt at mediation in the early stages of the break up when things were highly emotionally charged,  as time passes, the opportunity to revisit mediation for resolution should not be overlooked.

The relevant laws are incredibly complicated and hard to interpret, and accessing any rightful ownership is a many-step process, said Helen Matthews, the director of policy at the legal service.

“At the moment it’s one-size-fits-all approach, no cheap or efficient way of dealing with smaller matters in the current system,” Ms Matthews saaid.

The majority of women interviewed – almost 90 per cent – had experienced family violence, including economic abuse, and all said the delays they experienced in resolving disputes only exacerbated their financial difficulties.

Once more, had Sarah been informed of the low cost solutions available with Mediation and the speed at which it could resolve things so she could get on with her life, things may have been very different.

Sarah’s only option when she left her husband was to sleep in a donated tent at the local showgrounds. Their children remained in the family home – he had never been violent towards them and Sarah felt they would be safe.

For three months she lived on cornflakes and canned food until she was placed in community housing.

Through her eight-year family court matter, Sarah had to constantly subpoena her partner – at more than $100 a pop – who did not want to disclose his financial situation. She was eventually awarded a $100,000 settlement.

Sarah continues to be terrified of her ex-husband, and said when she saw him at the court hearing she almost wet herself with fear. Negotiation through a third party would reduce this trauma for women in her position, she says.   The best qualified third party in such a situation is an appropriately qualified Mediator who has been accredited through the National Mediation Accreditation System and is registered with the Mediator Standards Board of Australia.

Family violence is only rarely taken into account in determining property settlements, researchers found, despite the fact that economic abuse often leaves women with limited resources.

Mediation however can also help manage high conflict cases such as Sarah’s through use of Restorative Justice and Shuttle Mediation processes along with online services that are available now where you can participate in the mediation from the safety of your own home.

There should be a streamlined system for small property matters, and strengthened obligations for financial disclosure, researchers say.

Sarah, who found the Victorian Women’s Legal Service by searching the terms “women and help” on a computer in the local library, says the free legal advice and support saved her life.

“I was suicidal and could see no future for myself. I’m so appreciative of them.”

*Names have been changed for safety reasons, article original source from the Age.

For further information on if Mediation can help you, please complete the contact form below for a free initial consultation.

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Restorative Justice & Family Mediation

For many people experiencing a family breakup as a result of domestic violence,  they look to the Family Law Courts for justice, perhaps not realizing this is not the venue where they will get justice.

The perpetrator of domestic violence often goes unpunished and for the victim going to Court there is some expectation that the Family Court system will finally give them that closure.    Unfortunately it is an unlikely outcome as the Family Court system is there to resolve disputes between the parties when it comes to property and parenting matters.

It is not a place where the victim can expect that the perpetrator will be finally brought to answer for the harm they have done, with cases involving Domestic Violence the offender more often than not does not get punished, an AVO is in place to hopefully prevent further violence but often there is no justice for the victim.

Would Restorative Justice help?
Restorative justice is a system of criminal justice which focuses on the rehabilitation of offenders through reconciliation with victims, it is an approach to justice that personalizes the crime by having the victims and the offenders mediate a restitution agreement.

For some perspective courtesy of Mediate BC Blog restorative justice can assist not only in Domestic Violence cases but also with cases of breach of trust and fidelity.  The author says… I have yet to mediate a family dispute that did not involve some kind of harm in addition to the very real and challenging problems confronting the participants. I suspect that this is true for you as well. About 15 years ago I was introduced to the idea that solving harm and solving conflict are two different things entirely.

The Justice Problem

How can we resolve the harm that occurred through accountability, amends and support? Here the person causing harm has moral obligation. 

The Conflict Problem

How can we negotiate a mutual solution to the mutually agreed problem? Here there is moral neutrality.

I believe it is this difference in the moral status of the participants that creates the need for different and distinct processes.

In my experience, and according to the material I have read, any Justice Problem is going to make solving the Conflict Problem more difficult. The truth of this was painfully apparent when I was working with one couple.

I was helping this couple with a parenting and financial agreement. They had been separated for 1 year and were primarily communicating through their 9-year-old son. Their separation occurred after an extremely harmful verbal attack. The wife had committed adultery years earlier and they had managed to remain together despite not dealing with some of the key factors leading up to and resulting from the infidelity. She was beginning to show some of the same behaviours that had occurred last time and the husband freaked out. Both acknowledged that this was a terrible outburst and was unacceptable.

Due to his shame and guilt and justified anger at her newest betrayal of their marriage, and her fear and shame at his reaction and how she had triggered it, they had stopped talking to each other. As co-parents they did have many conflict problems they needed to solve, so some communication was required. Thus the inappropriate use of their son as a go between.

I was aware of this trigger event when we started dealing with the co-parenting agreement, but they initially told me they wanted a conflict-focused process geared towards getting the co-parenting agreement done. It quickly became apparent that the trigger event was looming large and it was a huge problem barring our way forward.

I tested to see if a restorative process would be possible to resolve enough of the Justice Problem (his outburst) to proceed with the co-parenting agreement. Was he willing to take responsibility for his actions and communicate this with her? Yes he was. He was horrified at what he had done and deeply needed to express this. Was she open to communication with him about this and to hear his apology?  Yes she was, though for safety reasons she wanted it to be in written form and she wanted to be able to respond in writing. He was open to this process.

So I coached him on how to write a helpful apology letter and we worked through three drafts together. I delivered the final draft to her and sat with her while she read it. We talked some things through and then she went home to write her response. She shared a draft with me which was excellent and I passed that on to him and helped him process it. Both reported a significant sense of relief and resolution and an increased openness to communicate directly with each other.

We were then able to move towards completing the co-parenting and financial agreements.

This integration of a restorative process (dealing with the harm) with a conflict resolution process was able to get the participants unstuck and moving towards a better future as co-parents. There are many other methods and tools that restorative justice brings to Justice Problems that can help transform an intractable problem into a manageable one.

I often describe to my clients that they have a choice of what they want to deal with in a mediation with me.  We can deal with the justice issues and then deal with the conflict issues, or we can just deal with one or the other.

Given that many family problems are tied into abuse or unhealthy family dynamics it is a regular occurrence that I will need to remind clients of that choice:

Are we seeking justice or are we problem solving?

Sometimes we shift between the two dynamically.

If given permission, I will always deal with the justice issues first. Often I don’t get permission to work with the justice problem, so other supports are required for the person who caused the harm and the person who experienced it (sometimes these roles are shared by all). This is why I like to have a team of legal, health and financial professionals to equip my clients to cope with the often complex and high value problems they bring to me.

How have you thought about the moral status of your clients and the role of harm in solving Conflict Problems?

How do you work to overcome the barriers that Justice Problems bring to solving family disputes?

Contact us with the form below for a free initial consultation to see if Restorative Justice Mediation is an option for you.

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Shuttle mediation for family violence cases

When there are allegations of family violence, all couples must attempt mediation before a court will grant a permanent family violence order.

The ACT Magistrates Court says that 95 per cent of family violence matters in the ACT are settled and only five per cent go before a magistrate for hearing.

So how does this system work and why is it so successful?

Click Here to listen to the ABC Radio National Program on Shuttle Mediation.

If you would like more information on how ADROnline can assist not only with Shuttle style mediation, but having it done online from the comfort and safety of your own home, fill in this form and we will contact you for a free consultation.

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Reasons To Try Child Custody Mediation

Child Custody Mediation

Child custody mediation provides parents with a valuable alternative to an adversarial divorce. Through the process of mediation, parents have the opportunity to work together and create a parenting plan that honors each parent’s unique contribution to their children’s upbringing.

Benefits Of Child Custody Mediation

Divorce is not commonly a good situation, but when there’s a child involved, the potential damage is not just about you. If you want to avoid as many tumultuous situations as possible and protect your child, child custody mediation is way to go. Through the mediation process, parents find a way, with mediator guidance, to work together and create a plan that honors the child and their upbringing. There are a number of advantages to working out child custody in this manner. Here are a few to consider.

Non-Adversarial Option

Child custody mediation is a collaborative effort that has one common goal in mind…the child and what is best for him or her. Unlike going to court, mediation focuses on the child and their best interests. Through the process, you can establish a parenting plan that allows both parents to be active and involved in the child’s life. Taking a former spouse to court and suing for custody can be a very messy situation.

Easier On Children

Contested divorces are hard on everyone involved and they can have a huge impact on the children in the picture as well. Despite good intentions, you realize that you have a lawyer and they are going to fight with all of their power to protect your interests.

Children can get caught in the middle of two sides fighting against one another. Child custody mediation, on the other hand, teaches your children that you and your former spouse can sit down, speak civilly, and work things out  where they are involved.

Mediators Are Neutral

Well-trained mediators are professionals who do not take sides. They want to help you and your former spouse work together in order to figure out a plan. You don’t have to rehash the past or reasons you split. Instead, you will move forward and figure out new ways to work together. A lawyer is going to be on one side or the other, but a mediator is neutral and in the middle.

Mediation Is Blame Free

Whether you are blaming one another for events leading to the divorce or not, mediation focuses on moving past those issues. You need to be able to work together in order to raise your child successfully. When using a mediator, you can set aside the blame game and focus on new skills that will help you collaborate as parents. The plan you come up with is something you will both agree on and stick to over the years.

Focus On The Future

Let’s assume that parties involved love their children and everyone wants what is best for them. The mediation process focuses on the future plans of the family and the future of the children. It creates a workable plan that allows children to have relationships with both parents in a meaningful manner. Looking ahead instead of into the past will help a new type of relationship form between the parents.

Mediation Reduces Conflict

A good mediator will help you and your ​ex develop new skills for communicating with one another. Over time, this will considerably reduce the stress on all of you. When you and your ex are no longer arguing over the past, it’s a lot easier to focus on what’s best for the children in the “here and now.”

Mediation Reduces Stress

The stress that weighs on you during a divorce can lead to insomnia, the inability to concentrate, and increased impatience with your children. As long as you remain in a constant state of conflict with your ex, this response is natural. Child custody mediation will lower your overall stress by giving you the tools to work through your conflicts and give you a hopeful outlook on the future.

Mediation Helps You Create an Effective Working Relationship With Your Ex

This is one of the most important aspects of learning to work together in raising your children. Through ​mediation, you will learn to communicate effectively with one another and create a workable plan for the future.

Mediation is less costly

When you work with a lawyer, you pay him or her by the hour to represent your interests. Since your ex is also paying a lawyer for to represent his or her interests, the amount of time it takes to reach a consensus builds and the end result becomes extremely costly.

Mediation creates a win-win result

The focus of mediation is to create a plan that is best for the children. We know that in non-abusive situations, it is best for children to have access to both of their parents. The process of child custody mediation side-steps a lot unnecessary arguing and helps parents create a working relationship through which the children can thrive.

Sources : South Bay Mediation, The Spruce

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