Why Optimised Primary Dispute Resolution

 

I can’t believe you would try to resolve disputes in any other way. I would be overwhelmed trying to mediate without first going through these steps.”[1]

 

The common method for mediating family law disputes

The mediation of family law disputes is not something new and indeed is quite common. Mediation is an intervention between two or more disputing parties by someone external to the conflict to promote a settlement or compromise. 

My appointment as a mediator in most disputes rarely occurs at the outset of the dispute and commonly occurs after the parties have had at least one event (directions or interim hearing) before the court. 

Accordingly, I am often parachuted in at stage of the dispute where initial negotiations have failed, a court has intervened and the parties are faced with an exhausting and costly legal battle.  However, involving me at such a late stage does not leverage my full skill set or knowledge and experience in the area of family law. 

The Statistics Informing the Case for OPDR

Last financial year[2], data from mediations supports a conclusion that those mediations that had been thoroughly prepared often achieved a settled outcome within ranges of likely court adjudicated outcomes. Unfortunately, most of those disputes had already had court proceedings instituted. A cost that OPDR can avoid. 

The Goal of OPDR

The primary goal- provide a safe, neutral, impartial and experienced forum to enable parties resolve their disputes appropriately, earlier, faster, economically and with far less emotional turmoil.

Engaging with the OPDR format involves me to a greater extent throughout the dispute to manage the parties through the process compared with a standard mediation. I assist the parties with some negotiation skills and help them understand negotiation dynamics. I also provide support to the lawyers to better define the actual issues in dispute, what each party is contending should be an outcome and what are the relevant facts, matters and circumstances that will help each party better understand that contended for outcome. 

To do so there are 4 defined stages to OPDR, each with a separate but overarching purpose of meeting the goal of OPDR. 

Early Assistance Mediation (Stage 1)

 

Why

My observation is that some disputes are unnecessarily in the court system because of;

  • Lack of engagement (either or both parties) in focusing upon resolution;
  • Lack of definition of the real dispute; or
  • Lack of motivation to settle

My personal observation is that parties do not enter into a mediation process early enough because they perceive it not to be safe

A litigant might be worried about their or their children’s personal safety. They may be concerned that pursuing mediation puts at risk the timely resolution of their dispute rendering their case unsafe. In other instances, parties are just concerned that indicating a willingness to settle early is a concession of defeat or a perception of some weakness. Then there are those parties that simply avoid dispute resolution for reasons that ultimately impact obtaining a timely and self-determined outcome.

Early intervention through Early Assistance Mediation (EAM) produces cost and time savings.

OPDR is SAFE !

Whether parties are self-represented or have lawyers acting on their behalf information is obtained from the parties to ensure any process is in accordance with best practice in terms of protecting a party’s safety and protection from acts of domestic violence. In particular, the EAM can be conducted on separate days, via telephone or in separate rooms (shuttle mediation) or a combination of any of those methods. 

More importantly, the word “safe” extends to the communications during the OPDR attracting confidentiality for the purposes of the Family Law Act and Evidence Act. 

Moreover, parties can be “safe” in the knowledge that the overall purpose of the EAM is not to put the pressure upon final outcomes but rather the development of interim agreements and development of the Genuine Resolution Steps. Whilst practitioners might consider these “baby-steps” in terms of resolving the dispute, what these interim agreements assist the parties understand that it is normal, and safe, to make compromises and agreements. 

What Disputes

As the name suggests, Early Assistance Mediation is ideal for those couples who have recently separated or there has been a recent change in circumstances and a dispute has arisen. 

Our experience as family law practitioners tells us that parenting and financial disputes often become worse without any stop gap measures.

A common scenario encountered is where, in a parenting dispute, one parent refuses to permit the children to spend time with or communicate with the other parent. Social scientists refer to this as gate-keeping. Sometimes the gate-keeping parent is acting protectively, other times it is being unnecessarily restrictive. For whatever reason, an impasse has arisen and the children miss out and the trust between parents disintegrates.

Property disputes are also rife with gate-keeping attitudes to the property pool where one party seeks to assert exclusive control over income, liquid bank accounts and real property. Again, the disintegration of trust ignites a dispute that may not need to happen with property advice and guidance. 

In terms of the impact upon negotiations to resolve the impasse, it is usually a case of cause and effect. Accusations are made causing the other party to become even more defensive of their position. 

I describe the above situation as the drawbridge effect.  

The kinds of disputes ideal for resolution through Early Assistance Mediation include;

Parenting

  • Agreements to engage in family / reunification therapy
  • Agreements to engage an expert report writer
  • Interim arrangements 
  • Housing / schooling issues

Property

  • Interim arrangements – meeting liabilities such as the mortgage
  • Who occupies the home
  • Spousal support

Child Support

  • Limited child support agreements
  • Agreements pending lodgement of assessments
  • Education costs

 

Outcomes To Be Achieved

Early Assistance Mediation is about bringing down the drawbridge so that the parties can engage, with or without their legal advisers, in a neutral and safe environment. Start lowering the drawbridge and putting away the catapults!

The goal of Early Assistance Mediation is threefold;

  • Determine and resolve those issues can be resolved immediately through interim agreements.
  • Reach agreement about the Genuine Resolution Steps (GRS) that efficiently guide the parties toward a final mediation or alternatively an arbitration. 
  • Get the parties accustomed to safenegotiation and compromise rather than fear-based, defensive positions and argument. Keeping the drawbridge down so that the exchange of information and building of trust can occur. 

 

Get Ready Now For Genuine Resolution Steps

In the ALRC Report upon the Family Law System extensive examination of how to encourage and facilitate the amicable resolution of family disputes resulted in 5 recommdendations one of which was to introduce the requirement of a “genuine steps statement”.

Recommendation 21 The Family Law Act 1975 (Cth) should be amended to: 

  1. require that parties take genuine steps to attempt to resolve their property and financial matters prior to filing an application for court orders; and 
  2. specify that a court must not hear an application unless the parties have lodged a genuine steps statement. 

A failure to make a genuine effort to resolve a matter should have costs consequences. 

None of this needs legislative amendment and can be adopted through the relevant rules of court. It is noted the Family Courts and Federal Circuit Courts are currently undergoing a rules overhaul with the likelihood of a combined set of rules for both courts. With pressure upon court administrators to both take on a gatekeeper role (i.e. keep matters out of court) and determine matters quicker, the rationale behind the recommendation would weigh heavily in favour of incorporating a genuine steps statement now. 

Accordingly, engaging in the OPDR serves that purpose. 

Here is an example of a GRS recently reached at an EAM.

How

Most skilled family law practitioners would probably ask themselves, “but we already do this, why do we need it ?”.

The answer is, “In most cases you won’t and Final Mediation is all that is required.”

However, OPDR will be most suitable where;

  • You have already attempted to communicate to the other party without success – i.e. the drawbridgewon’t come down. 
  • Your clients want to avoid extensive litigation and/or lawyer involvement but need an independent neutral mediator to guide both parties to a timely and inexpensive resolution.
  • Your clients need interim measures arranged urgently without the cost, angst and delay of even an interim court process. 

When you ask me to start the OPDR, I immediately start refining and reducing the issues. In some cases, the GSR itself will lead to the resolution of the dispute without necessitating a Final Mediation. 

Pre-Mediation (Stage 2)

Pre-Mediation is best understood by the following graphic. 


In this respect, the Pre-Mediation phase of the OPDR process utilises me in a way that is not normally encountered when simply engaging a mediator. In a colloquial sense, I get my hands dirty. 

I spend an extended period well in advance of the Final Mediation with a party alone (either with or without their lawyer) to revisit again the concepts of mediation, to focus them upon the differences between interest-based (what they need) as opposed to entitlement-based (what they want) negotiations as well as understanding some of the basic neuroscience behind humans entering into negotiations where they are in dispute. 

Additionally, to reduce the actual time of the Final Mediation and to increase the likelihood of a successful mediation, I interact more frequently with the lawyers in order to refine the issues for resolution (see above average number of offers exchanged), developing master documents (terms of settlement) in order that the “devil in the detail” has been worked through well in advance of the Final Mediation. 

Importantly, I ensure the parties are on track with meeting the GRS. 

Final Mediation (Stage 3)

 

This process is familiar to most but because of the extensive ground-work already done, it is expected that the parties starting positions should already be quite close, reducing the amount of time required for a Final Mediation and thereby exposure of the client to legal cost. 

Offers are generated as complete bargains rather than merely Heads of Agreement that require ratification at a later date. To reinforce this concept, parties attend the Final Mediation warranting to the other they are in a position and have received all relevant legal advice to enable them to enter into a final bargain, whether by consent order or binding financial agreement. 

But even if final settlement is achieved, my role does not end there. 

A follow up service mean that I keep involved with the lawyers until the relevant agreement is finalised with a court. This is particularly important where a mediation ends with a “live” or “on the table” offer for consideration. 

This service also includes providing the parties with a follow up questionnaire about the OPDR service and their experience. 

Arbitration (Stage 4)

 

Arbitration

 

Arbitration is the appointment of an independent arbitrator, often chosen by the parties, to rule on their dispute according to the terms of reference they give the arbitrator. This can only be done by agreement, before or after the dispute arises, but where it is done the arbitrator has authority to make an award which is binding on the parties and enforceable by the process of the courts.[3]

Recommendation 26 of the ALRC Report into the Family Law System recommended the increase of the scope of matters that can be arbitrated with Recommendation 28 going further and recommended that children disputes be arbitrated. 

Arbitration in family law financial disputes is becoming more common as court delay, uncertainty of trial dates, judicial officers and legal costs make arbitration far more attractive, particularly to clients. 

Consider the following table;

 

Consideration

Arbitration

Litigation

Time from start to end

6 to 8 weeks

12 to 24 months

Total legal cost

Less than $15,000 including half cost of arbitration

Between $40,000 to $100,000

Certainty of trial date/ decision/ decision-maker

High

Low

Confidentiality

High (contractual agreement)

Low

Control of process

Complete

Little or none

Emotional stress

Low (as a product of having control)

High – (as a product of having no control) / intimidating environment

Decision binding

Yes – Reviewable

Yes – Appealable

Applies the law

Yes

Yes

 

My web-page provides considerably more details concerning arbitration. Follow this link

 

Mediation-then-Arbitration

 

Often described as Med-Arb, mediation-then-arbitration is at the far end of the alternate dispute resolution continuum. This is where the mediator becomes the arbitrator upon the failure of the final mediation. 

The standard AIFLAM Arbitration Agreement contains specific clauses permitting the arbitrator to step out of that role and attempt a mediation and then step back in as arbitrator[4]however there are some important differences between that situation and a true Med-Arb.

The opposition to Med-Arb usually refers to the exposure of the Arbitrator to offers of settlement that a party made during a mediation impacting upon the outcome in the award. Other opposition to Med-Arb is that a party may be less likely to confide in the mediator information they do not wish the other party to know out of concern that said information may be used by the Arbitrator in their decision. 

These concerns are more those of the lawyers than the clients, as it is the clients that can see the immediate benefit of having an Arbitrator, who by now has all information relevant to the dispute, make a determination about that dispute at a time that is perfect for such determination. 

In this article I explore more fully the hybrid alternative dispute resolution method of Med-Arb.

My standard Med-Arb agreement proposes specific paragraphs that overcome any shortcomings surrounding this model of arbitration. [5]You might have noticed that as part of the GSR Schedule the solicitors are to have considered in advance of the Final Mediation aspects of arbitration including providing advice about the Med-Arb agreement.

The Costs of OPDR*

 

 

Service

Usual ADR Fee Schedule

OPDR Fee Schedule

Interim mediation (FDR only 4 hours)

$2,200.00

$1,100.00

Pre-Mediation

$440 per hour excluding information session, assume 3 hours

$1,320.00

$825.00

Final Mediation

$4,400.00 includes information session

$3,300.00

SUB-TOTAL

$7,920.00

$5,225.00

 

*The above table does not constitute a fee agreement or a notice of costs. These will be delivered separately upon engaging me to act. 

Because a party can Opt-out at any stage (but can’t opt-in except at the start), significant savings can be achieved if resolution occurs earlier.

 

[1]Feedback from a client after an Early Assistance Mediation

[2]Financial year 2018 to 2019. Excluded from this data set were pro bono mediations conducted for the Federal Circuit Court during 2018. See article here

[3]TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2013) 251 CLR 533 

[4]See Schedule B para 5(m)

[5]See paragraphs 

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