Why mediation is needed

In conversation with Lawyers Weekly, Anne-Marie Cade, who is the founder of mediation coaching firm Divorce Right, said that one of the biggest issues is that there are many cases caught up in the court system that should not be there to begin with.

Most lawyers you speak to will tell you, she noted, that around 85 per cent of cases settle before going to trial.

“Most of those cases need not have been filed to begin with if clients were educated on their options at the preliminary stages of their matter and a different approach was adopted by the lawyers. There needs to be a bigger focus on early intervention strategies,” she posited.

“Processes like mediation are very effective if done early in the process. Clients need to be educated on the process of mediation and coached and prepared, so they are in the correct mindset before they attend mediation.”

However, this does not happen, Ms Cade said.

“In most cases, they are referred on to mediation at the early stages with little or no guidance and most mediations then fail as the parties go in ill-prepared. Papers then get filed in court and mediation is used in the later stages of the process as a last-ditch effort after all the nasty allegations have been made and the matter has become so acrimonious that parties are entrenched in their positions,” she said.

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“An evaluative form of mediation is then used wherein they are forced into an agreement to avoid going off to court. Most often neither party is happy with the agreement and it is a recipe for disaster because they come out of the system with no skills on how to manage their co-parenting relationship which only leads to more conflict which in turn damages the kids.”

The onus is on the profession to act

“We can all sit around waiting for the politicians to make changes. None of the changes made will be ideal,” she continued.

“We are all quick to criticise but I think change has to come from within the legal profession as well as from other professionals who deal with clients going through separation and divorce. We need to change the culture around divorce and how it is done.”

Legal professionals in family law need a better understanding of conflict, how it can be resolved and better client management, Ms Cade surmised.

“There is no single method. It is necessary to create enduring solutions to conflicts, not just adopt a bandaid approach. It is necessary to think in non-traditional ways about possible solutions,” she explained.

“This involves an understanding of human behaviour and neuroscience, it involves shifting mindsets of both lawyers and clients and for this to be effective some of these changes have to come from within the legal profession.”

There is a social urgency, she espoused, to incorporate and develop transformative peacemaking practices into the work lawyers do in the family law space.

“We also need to work on ourselves as lawyers, so we see things differently. We can’t be that effective adviser beyond our own level of personal development,” she said.

“We are helping people who are embroiled in conflict and as lawyers we need a certain awareness of our own biases and engage in skill building, so we are equipped with the tools to deal with these issues so we can help our clients better.

“We can then integrate these learnings into how we deal with our clients. It may involve simple interventions at the very early stages. It’s important that we incorporate 21st century learnings into our work. Everything about the Australian family is changing but the way we approach divorce is still hopelessly outdated.”

Better understanding trauma

The trauma of divorce is not understood well enough, monitored or managed, Ms Cade added.

“There is a plethora of new service offerings available now to help clients manage even the toughest issues and make them more bearable and workable so they can reach resolution with minimal conflict,” she reflected.

“It’s necessary to embrace these new and different approaches to lead to better outcomes for our clients. Clients may be resistant to spending their money at the initial stages of the process to get this kind of help so it’s incumbent on lawyers to educate clients about the benefits of adopting these approaches so clients get the help they need and are able to sort their issues out in an amicable and peaceful manner instead of having to resort to litigation.”

It’s necessary for lawyers to look for big picture solutions and be peacemaking problem solvers, she concluded.

“Clients expect a gladiator approach when they see a lawyer so it’s up to us to show our clients that there are more constructive ways in which to resolve their matters. There is a collective responsibility on us as legal professionals to lead the change and make the difference.

“If we adopt this approach it will help clear the decks for the more complex cases that do belong in the court system and hopefully those cases will get resolved in a timelier manner.”

Ms Cade’s comments followed recent reports from Lawyers Weekly that family lawyers deemed the newly announced parliamentary inquiry into family law as wholly unnecessary and taking attention away from more urgent issues, that a more holistic approach is needed to fix the family law system, and that any inquiry into that system must ensure that the “malicious and deliberate destruction” of child-parent relationships is better addressed.