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Episode 136
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Professional Skills
Shuttling Back and Forth: Tips for Alternative Dispute Resolution in Legal Practice
Law as stated: 8 November 2024
What is this?
This episode was published and is accurate as at this date.
Angelo Bistolaridis, experienced family law solicitor, mediator, and lecturer at Western Sydney University, joins David to delve into the role of Alternative Dispute Resolution in family law. Angelo shares his expert insights on how lawyers can effectively prepare clients for mediation, expertly navigate the common challenges and enhance their overall approach to conflict resolution.
Professional Skills| What area(s) of law does this episode consider? | Alternative Dispute Resolution; Mediation. |
| Why is this topic relevant? | In the intricate landscape of family law, Alternative Dispute Resolution (ADR) has emerged as a vital tool for resolving disputes efficiently and amicably. ADR encompasses various processes like mediation, arbitration, and conciliation, which allow parties to come to an agreement without the lengthy and often costly court proceedings. This approach is particularly significant given the courts’ expectations that parties will first seek resolution through ADR before resorting to litigation, thereby promoting a more constructive atmosphere for family law matters. The importance of ADR cannot be overstated, especially in the context of family law disputes where emotions run high, and relationships are often strained. By employing ADR methods, solicitors can help clients navigate their conflicts in a more controlled environment, facilitating better communication and understanding between parties. This not only aids in achieving fair outcomes but also reduces the overall financial and emotional toll of legal disputes on families. |
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| What are the practical takeaways? |
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DT = David Turner; AB = Angelo Bistolaridis
| 00:00:00 | DT: | Hello and welcome to Hearsay the Legal Podcast, a CPD podcast that allows Australian lawyers to earn their CPD points on the go and at a time that suits them. I’m your host, David Turner. Hearsay the Legal Podcast is proudly supported by Lext Australia. Lext’s mission is to improve user experiences in the law and legal services, and Hearsay the Legal Podcast is how we’re improving the experience of CPD. In so many areas of disputes practice, but perhaps in particular in family law, alternative dispute resolution in general and mediation in particular is a vital tool for resolving disputes efficiently and where possible amicably. ADR includes different processes like mediation and also arbitration, conciliation, and it allows parties to come to an agreement without lengthy and often costly court proceedings. Courts across Australia expect that parties will first seek to resolve their disputes through ADR before they resort to litigation and in some jurisdictions, this is a procedural requirement. The importance of ADR can’t be overstated, especially in the context of family law disputes where emotions run high and relationships are strained. By employing ADR methods, solicitors can help their clients navigate their conflicts in a more controlled environment, facilitate better communication and understanding between the parties. This can achieve fairer outcomes for the parties but it also reduces the overall financial and emotional toll of legal disputes on families. Joining us today is Angelo Bistolaridis, solicitor, mediator and lecturer at Western Sydney University. Angelo has accumulated a wealth of knowledge between the numerous family law hats he’s worn and he’s perfectly placed to guide us through the nuances and complexities involved in resolving family law disputes. Angelo, thank you so much for joining me on Hearsay. |
| 00:01:53 | AB: | Thank you for having me. |
| 00:01:54 | DT: | Now, it’s great to see you again, Angelo. We came across one another in a family law adjacent matter a lifetime ago. |
| AB: | Yeah. Well, I’ve blocked it out by the way. | |
| DT: | Maybe it was more traumatic for you than it was for me. I was for a bank, so there was no emotion in it for me. You were for one of the parties to the marriage and we sort of run into each other across our careers since then I suppose and it’s great to see you in the Hearsay recording room. | |
| AB: | You look very well. Yeah. You look great. | |
| DT: | Thank you. You too. Now I said at the top of the episode, you’ve worn a few family law hats. Solicitor is one, we’ve dealt with each other in a professional capacity there. Tell me about the other work you’ve done. | |
| 00:02:28 | AB: | So I started as a solicitor above a chicken shop sort of thing and then I worked for a solicitor for a while. I started working at the Family Court in, I think 2000 and- it was around COVID times and I became a judicial registrar there and it became the FCFCOA. I left it late last year to go into private practice because I had another kid coming and we needed to try that. And so I’ve been doing a sort of mediation style business for a year. We’re coming up to a year next week, actually, we’ve got our birthday coming up. And I was doing mediations all through the work I did at the court. As a judicial registrar, I was doing conciliation conferences or various types of family law dispute resolution, as well as running court lists and doing enforcement work, which was most of the stuff I was doing. And that’s where I am now. |
| 00:03:21 | DT: | Just going back for a minute, you said you left the FCFCOA – the focaccia – because you were starting your family. Tell me a bit more about that. |
| 00:03:28 | AB: | Well, the business is named after them actually. So Myra Aris & Co is the business name that I’ve got. And my daughter’s name is Mirafora and my son’s name’s Ari – he wasn’t born yet, but I knew what I was going to call him because it was my dad’s name. So we were unexpectedly pregnant a second time when I was there and financially, it made more sense that I went into private practice I’ve worked for someone for a little bit of time, but that wasn’t for me. And then I just decided with a very heavily pregnant wife that I was going to go start a business and she was, can I say, really good about it because a lot of heavily pregnant women with the sole breadwinner in the household deciding to start a business would have mixed feelings about the situation, but she was very, very supportive the whole way through. |
| 00:04:15 | DT: | Yeah, I could understand having mixed feelings about the situation, but it sounds like by all reports, you’re very busy. |
| 00:04:16 | AB: | Yeah, yeah, I am. No, I’m crazy busy at the minute. So I’m doing mediations probably four to five times a week. |
| 00:04:25 | DT: | Wow. |
| 00:04:25 | AB: | And the other days I do legal work, but mostly not litigated legal work. I have very few clients that I take on. I don’t operate a trust account. Well, I don’t want to do that because it stresses me out but the other thing is I don’t have generally private client work that’s not one and done sort of work like financial agreements or wills or that kind of thing. I otherwise have, in the legal business. consult to law firms who do family law work, but don’t have the resources to really do much of it and they have overflow and not enough staff around to help. So I do some of that work and I do a lot of appearances at court as a solicitor advocate. So for interim hearings and hearings generally, I get engaged by law firms. It’s probably once a week, once a fortnight, I’m doing that kind of stuff. |
| 00:05:14 | DT: | Clients are people who used to appear before you? |
| 00:05:16 | AB: | Yeah. Yeah. Yeah. Majority of the time, it’s people who had some kind of engagement with me when they saw me at the court but having said that, they’re probably people that do a lot of family law so they gravitate towards that. I do other areas of law as well, but it’s been predominantly family law. family law that I’m doing mediations in. And yeah, a lot of the family law work that I do is mostly with those firms that have seen me in the past. |
| 00:05:42 | DT: | Now, I’m really excited to talk about our topic for today. When I’ve spoken to a few people about the topic, talking about ADR in general, mediation in particular, a few people said to me, “oh, can you ask this? Because I’ve always wondered.” “Can you ask that? Because I’ve always wondered.” So I’m really excited to talk about it. Mediation is mandatory now before certain types of family law proceedings. It’s been around as a tool for the profession to use before it was mandatory. And it’s mandatory in a broad range of other circumstances as well, retail lease disputes in NCAT spring to mind. Genuine step statements have to be filed in the Federal Court for commercial proceedings as well. So you could expect at least a negotiation, if not a mediation but at the top of the episode, I gave a kind of rosy description of mediation, right? It’s calmer and emotions don’t run as high and everyone walks away feeling better about themselves. Does that ring true to you and your experience in mediation? |
| 00:06:35 | AB: | I do try and get that. So the answer is yes, it can be very emotionally taxing, but a lot of the people you deal with often have been dealing with these issues for many years, or they’re dealing with the breakup of a marriage or a long term relationship, and it’s been quite some time and a lot of them are actually past the grieving process, which takes place when a relationship breaks down, some of them aren’t, and they’re probably the more interesting people to talk to, because you get to delve into some level of psychology and some level of trying to relate to the person, which I really enjoy. I guess, oftentimes, I’m engaged because I have a certain way about how I deal with those kinds of matters, and I’m huge on people feeling well after a breakup or being able to move on afterwards. And I hope people feel that way when they deal with me, but it’s probably more so than most areas of law that are a bit clinical. Like corporate litigation, people very rarely get, well actually the lawyers get very emotional, the clients themselves are just very business oriented about it. You don’t often get business sense in family law matters. |
| 00:07:37 | DT: | Yeah. What do you see as the key benefits to mediation? How would you sell it to the client in particular? |
| 00:07:43 | AB: | So the lawyers know the benefits of it, but to the client in particular, commercially, it usually makes more sense. to pay someone like me for a day to try and see if there’s any common ground between two people who really have not had much to do with each other since a breakup other than having to raise their children in tandem, as ships in the night or having narky lawyer’s letters going back and forth about the issues they have. So it’s worth investing in that. Sometimes, emotionally, they get some kind of catharsis out of it, so once something’s resolved, they feel like a sort of relief. They’re able to sleep at night, which is something I always say to them; if they do a deal, it’ll be a deal that they can sleep at night and not worry about the thing, because you can imagine most of them going through that experience have really high levels of anxiety. |
| 00:08:36 | DT: | Yeah. |
| 00:08:36 | AB: | If you’ve ever experienced anxiety, they feel a prolonged period where every time an email comes in, or every time they get a call from a lawyer, they feel this sudden sickness in their stomach or chest tightening, or they wake up in the night worrying. And so even for that kind of relief, it’s generally quite therapeutic in that way. They can move on but the other real benefit of it is that if there is an agreement, it’s an agreement they have as between themselves, it’s something they’ve decided together. And it’s very rare, I think, once you’ve made a decision together that isn’t imposed upon you, that you would ever derogate from it, whereas sometimes when a decision’s imposed upon you, you appeal it or you don’t like it and you find ways out of it and so on and so forth. So those are the main sort of benefits. |
| 00:09:24 | DT: | Yeah, I like that. That idea that something that you’ve entered into voluntarily being more likely to be complied with. |
| 00:09:31 | AB: | Yeah, except marriage. |
| 00:09:34 | DT: | Well, important caveat for the family lawyer. But it’s both highly intuitive and also chafes against the lawyer part of your brain that always wants to invoke the compulsive process of the court, right, like as lawyers, we often think, well, the most surefire thing is a court order, right, but there are constant breaches of court orders. |
| 00:09:52 | AB: | Court orders. Yeah. Especially in that court because you’re not dealing with sophisticated clients. Usually you’re dealing with like normal people on the street who have never had involvement with the legal system in any way whatsoever. Sometimes it’s their second go of proceedings because they’ve had some kind of criminal law involvement, they’ve gone through that process, but generally they’re not dealing with lawyers on a day to day basis. Sometimes they don’t realise the importance of court orders. Sometimes they’re just not very good at complying with them because the severity of it escapes them and when they’ve gone to lawyers, the lawyers really have a job of framing the whole situation around the things that best benefit their case. That’s condensed into letters and affidavits. That’s presented in a way that the other party gets and forms a view about the nature of everything they say, which sometimes puts them off, they do a response and then before you know it, they’re sometimes in a worse off position once lawyers have gotten involved and revealed what their, quote, “feelings” are through those kinds of materials. So I like the capacity to bring people back from that. |
| 00:10:59 | DT: | Yeah, absolutely. And the other thing that you hinted at there was the outcome that you choose, you have more tools at your disposal, right? The court has a finite number of remedies. I mean, the Family Court has a remarkable degree of latitude in the nature of the orders it can make, sometimes in a way that’s bewildering to commercial lawyers, but… |
| 00:11:16 | AB: | Or jurisdictionally questionable. |
| 00:11:17 | DT: | … it’s still limited compared to what the parties can agree to themselves. |
| 00:11:22 | AB: | Yeah, that’s exactly right. Yeah, yeah, yeah. And that’s probably another benefit that you could do deals outside of court that probably would never be an outcome if you ended up in court, like a classic example is people reaching an agreement that they’re going to eventually sell a house once the kids have reached adult age in five years time, and at that time, they’re going to split the entitlement that wouldn’t be done in a typical court order, it would just be that we have to sell it and pay everyone out or someone taking the whole of their entitlement and superannuation versus not, that’s not typically a court order that would be made. So there’s that creativity that I enjoy with it too. |
| 00:12:00 | DT: | Yeah. You’ve hinted twice now at the role lawyers play in framing the way the clients are feeling in a negotiation or a mediation. So the kind of snarky letters that go back and forth, and it seems to be a habit that many of our colleagues just cannot break in the tone of correspondence and then also how things are framed when it comes to pleadings and affidavits and other filed documents. From the perspective of preparing for a mediation or some other ADR process, what role do you have as a solicitor in setting the parties up for success by avoiding that kind of correspondence or that kind of interaction with the other parties. |
| AB: | It’s really hard to do. | |
| DT: | Because I think we’re often thinking about the animus between the clients, right? And “oh, well, we’ve got to manage that at the mediation” but if you’ve been exchanging this really heated correspondence with your colleagues on the other side of the matter, there might be some animus between the professionals. | |
| 00:12:55 | AB: | Yeah, there often is. So you often see, in court I used to see this more, where the lawyers were more into it than the clients were in terms of the litigation and they were like the ones breaking up versus the clients themselves. Lawyers, generally, I think are insecure in many ways, like personally, they often have things like imposter syndrome and things like that. That’s always at play. And you generally see that come out whenever they feel like they’re not doing a great job or whenever they feel like their client is going through a tough time because the other part of being a lawyer is they’re generally quite empathetic, especially if they’re doing family law, they have a tendency to be very empathetic or very concerned with helping people. So if you have a client who’s going through a very difficult time and they’re relaying the difficult time to you, you often feel that you’re not doing a great enough job, it’s your fault and at the same time, you feel sorry for that person. And those very natural feelings, very common feelings, funnel their way into things like letters and affidavits and strategies and applications because your job is always to do the best possible job you can. What often happens is that in itself bleeds out and creates a bigger dispute than may or may not have existed before and before you know it, the lawyers, who are probably going through very similar things, are in a very heated argument about something that wasn’t so heated, at least when the client came to them. So in terms of advice, when you’re dealing with that stuff, it probably makes sense to feel better about yourself. That’s probably the best advice I have. One of the amazing things about my job is that I get to see people when they’re not with the other party. So you get to see lawyers one on one with their clients. |
| 00:14:52 | DT: | Yeah. |
| 00:14:52 | AB: | The difference between a client talking to their lawyer and a lawyer talking with another lawyer when everyone’s watching is stark because lawyers very often are dealing with people who have demands or expectations which aren’t always reasonable and you can see the lawyer trying very hard to tell the client the reality of the situation and the reality isn’t sinking in and sometimes you need a third party to come in and give you the reality of the situation. That’s what a mediator does. And reality test is a big part of it. So lawyers, I know whenever they deal with clients, in private, they usually talk a lot of sense and they’re usually wanting to resolve a situation for a client because it’s also taxing for the lawyer because a lawyer does not want to be trapped in an ongoing legal dispute when they’ve got 40 other clients and you’ve got them all calling you all the time with all of their problems. They very much want to resolve and move on and free up some time. So they’re not feeling the way that they’re feeling all the time with the stress associated with it. |
| 00:15:58 | DT: | Yeah. It never occurred to me that your mediator in a mediation might be thinking about these things – about the workload that the professionals have and the emotional response that the professionals involved have to the matter. I guess that just didn’t occur to me. |
| 00:16:13 | AB: | Yeah. No, it’s a reality so most lawyers are incredibly busy and most of them deal with incredible levels of stress and they’re usually very high achievers too. They’re usually from a background where they’ve been top of their class, at least at high school and then they’ve gone to uni and been competitive there and they’re very competitive people and then they get into private practice and they’re very competitive there and there’s a lot of stress associated with, career-wise, being able to maintain that, but also dealing with the mass volume of people you deal with on a daily basis and the work associated with it. So that’s part of it too. |
| 00:16:49 | DT: | So I guess preparing for mediation. Step one, feel your own sense of self worth. |
| AB: | Yeah, you’re important. | |
| DT: | Be sort of in a good place emotionally. | |
| 00:16:57 | AB: | You’re an important person. Never make someone else’s problem your problem and never let someone else’s decision affect who you are as a person because very rarely has a lawyer been engaged- like with family law, I know that they’re the ones that generally get the most complaints. If you ever look at the statistics with insurance and things, it’s conveyancing and that and legal services and things, they get the letters and things of that nature. So, it’s very often that you deal with people in a very difficult situation, who aren’t happy, who complain, who argue with you, who are very difficult to deal with, and you have that stress but there needs to be some level of introspection in yourself that, you know you’re very good at the job. You’re doing very well in the job. One person’s understanding of you is not necessarily the reality of the situation. So I think that’s probably important whenever you’re dealing with it more than anything else as a lawyer. |
| 00:17:52 | DT: | Yeah. |
| 00:17:52 | AB: | The other part of it probably would be understand what the dispute is when you turn up because sometimes people turn up and the dispute is not actually as big a dispute as they thought going in. |
| 00:18:03 | DT: | Yeah. Well, I guess sticking with the theme of preparing for mediation, do you do position papers as a mediator? |
| 00:18:09 | AB: | Yeah, people do them. So I tell people to do them. People often say, when do you do them by? I usually receive them on the morning, seems to be the standard but you know, we set times and dates for when to do them that never happens. And then people do balance sheets they put together sometimes on an Excel spreadsheet. You might as well be a wizard if you can use that because I can’t understand it, but they do amazing things with formulas and they set out all the property dispute that you’re fighting over. I usually get, if they’ve already filed in court, an affidavit or something, just so I get a flavour of it. Sometimes they get family reports done. If I get a release order, which by the way, incidentally, it’s the coolest thing ever that you see your name on a court order, where it says “we appoint Angelo Bistolaridis as a mediator,” or “we release to Angelo Bistolaridis, a family report.” I don’t know why. It was very exciting to me. It felt special. I’d never felt like that. I used to be the one with; Judicial Registrar Bistolaridis made the order. |
| 00:19:03 | DT: | Felt more special. |
| 00:19:06 | AB: | I don’t know, yeah, it felt weird. It felt exciting. |
| 00:19:08 | DT: | Interesting. There you go. Maybe it’s because it’s your practice. |
| 00:19:11 | AB: | Yeah maybe. When I saw my practice name was even more exciting because it was my kids. Working there was the best job of my life. I really loved it. I would never have left the court if we could have afforded it but it was honestly a great experience and some of the best people I’ve ever met in my life work there and it’s a weird experience because you’re isolated from the general community and you develop very strong friendships there and probably friendships that for the rest of my life are going to be incredibly important to me. |
| 00:19:37 | DT: | Yeah. I want to go back to position papers and preparing for mediation. So you said sometimes parties come to mediation expecting a much larger dispute. Can position papers help to narrow that or because they sometimes help to expand? |
| 00:19:50 | AB: | They often hinder disputes. So one of the things you probably as a lawyer would want to know is if it’s not necessarily a huge dispute, don’t bring it up. Like for example, no one really cares what a Toyota Camry is worth, right? And so whether it’s 12 or 20,000 in the context of $1 million, which eight grand’s a lot of money, but some people take the view that every dollar that you fight over should be part of the dispute, whereas in reality, everyone’s got a car. It’s like Oprah. Everyone gets a car, right? |
| 00:20:27 | DT: | Yeah. |
| 00:20:27 | AB: | So why is this going to fall over from the beginning… |
| 00:20:31 | DT: | Yeah. |
| 00:20:32 | AB: | … about what the car’s worth. Right? |
| 00:20:35 | DT: | Yeah. |
| 00:20:35 | AB: | So maybe don’t make it a dispute. Sometimes position papers have inflammatory material in it, particularly with parenting matters, and particularly when there’s a contested litigation about the capacity of one parent versus the capacity of another. And you get it very often when there’s very severe domestic violence, that every aspect of the violence will be particularised. And you can only assume that if it is being particularised, the lawyer knows that the other party’s going to see it. You have to assume the other party’s going to see the position paper. I’ve had a number of mediations where from the outset we’re sitting there doing the mediation and already I’ve got one party who’s just read the stuff that causes them either distress or an unwillingness to go on with the day because if they’re coming into the situation with that level of robustness in their defense of their client, it may not be setting the right tone if the goal is to resolve it. Sometimes the goal is not to resolve it. Sometimes the goal is to adjust expectations. |
| 00:21:40 | DT: | Yeah. I think that’s something that often as a solicitor, you think, well, and leaving aside the situation where it’s mandatory because you don’t have a choice, but if you’re thinking, “is it worthwhile to go for another round of mediation?” Or you think, “is there a reasonable chance of this settling?” But you’re right, often, even if it doesn’t settle, you might narrow the issues. You might find some common ground that helps to make the trial a little bit shorter or save the parties the cost of an expert report on an issue where we’re prepared to agree on that issue. So, there’s partial victories to be won in a mediation as well. |
| 00:22:14 | AB: | We reached the end of the day and we haven’t got a deal, but we’ve all realised no one’s going to get to keep the house, for example and so let’s just sell it. |
| 00:22:20 | DT: | Yeah. |
| 00:22:21 | AB: | That’s a big one, or we’ve agreed on what we want to do with the kids on an interim basis, but we’re not there on a final basis. That’s a type of settlement but even when there’s no agreement reached, at least you’ve spent the day adjusting expectations. So at least you know what the maximum amount that you’re going to be able to get is versus the maximum amount that you’re going to have to lose and so if there’s any chance of trying to mediate later, you’ve got really good firm grounds on what you can expect. Having said that, I’ve had a number of people that come back for second go’s after we’ve reached a certain part, we’ve got a good agreement in place. “Let’s see how this goes for a period of time and then come back.” I’ve had that. And that works too, because sometimes there’s complexity. The biggest one I had was there were 13 different parties involved. Yeah. It was wild. |
| 00:23:09 | DT: | Well, I mean because you often get the party’s banks involved, |
| 00:23:13 | AB: | Oh yeah, of corporate litigation. Yeah, they own a business and there’s different trusts involved and they’re all represented. |
| 00:23:19 | DT: | And then one of the businesses is in liquidation and it’s also got receivers appointed. |
| 00:23:23 | AB: | Receivers there, trustee. And there’s a stark difference between dealing with a pool of assets or a parenting dispute that’s a house and garden, how many days is the kid going to spend with mum or dad and how much we’re going to get out of the house versus $170 million worth of assets in complex structures, and there’s a dispute of about 20 million on values… |
| 00:23:43 | DT: | Yep. |
| 00:23:44 | AB: | … or our child is going through particular life challenges at the minute, or has very significant special needs, and there is certain realities about what you have to plan for that. The one I did, where there were 13 parties, went till 2 AM or something like that. |
| 00:24:00 | DT: | Yeah, wow. I mean, I guess one thing that you don’t get in family law matters, I remember doing commercial mediations where mealtimes play a big role in getting things settled, right? Because with the larger parties, it’s not their money and eventually, you know, around 8 PM everyone wants to go get dinner and then come back. They’re more willing to speak in favour of a deal to get the day finished but with parties who are talking about their own lives, their own children, their own livelihoods. |
| 00:24:28 | AB: | Yeah. That one was an inheritance dispute tied in with a divorce but that one took time and then the other one is a parenting dispute of just nice people that had major issues with each other and that one, I remember one party was signing terms at 11:30 PM and the other one was signing terms at 12:30 AM and each of them had a different date on the court order, which I found funny, but that one went all day and all night, but they got a deal done, which was the main thing. That was very good. It’s great when that happens to spend the time and you do get a deal done. |
| 00:25:03 | DT: | Yeah, absolutely. I guess once you’re there at 11 PM, you’ve got to hope that everyone’s committed enough to find a deal. |
| AB: | Oh but f**k, it’s exhausting. It’s actually exhausting. | |
| DT: | Oh yeah. Now someone wanted me to ask this question when it comes to position papers. And it’s kind of around your role as a mediator in policing bad behaviour, or maybe not policing bad behaviour, but keeping the mediation environment fair, which is that, as you’ve identified, people see different purposes to the position paper in the mediation, right? Some people see it as a chance to write their pleadings again, and they say a lot of inflammatory stuff, and they put their case at its highest, and I suspect that’s most of them. | |
| 00:25:39 | AB: | Yeah. |
| DT: | Unfortunately. | |
| AB: | It would have to be, yeah. | |
| 00:25:41 | DT: | Yeah, and then some see it as an opportunity, and I think this is the rarer but the more useful kind, to put a genuine a position forward about the real prospect of where they’re negotiating from. |
| AB: | They’re the confident practitioners. | |
| DT: | Yeah. So like ones who identify, “well, these are the things about which we’re going to negotiate. These are the things where we think there are some levers to pull, and we’ve made this offer in the past and we’re prepared to make it again,” perhaps. Unfortunately, in some mediations, I’ve observed there to be a bit of a perverse incentive to being the former practitioner, because you show up and if you’re the practitioner who’s said, “I’m not giving one inch, here’s how strongly and forcefully I believe in my case,” and you’ve got the other party who said, “well, I’m prepared to make this reasonable compromise at the outset and we’ll negotiate from there,” there’s almost this heuristic where you’re now looking at, oh, a midpoint somewhere between this person’s not one inch given position and this person’s reasonable compromise somewhere in the middle there, instead of in the middle of both parties pleaded positions, although the kind of reasonable party has been open about how they’re going to negotiate. | |
| 00:26:52 | AB: | What they see. Yeah and there is that, that’s a common tool where you say, “well, you say this, you say that, why don’t we just go halfway?” So there’s definitely that in terms of strategically why you would offer the amount you have, but the converse to that is if you’re pretty certain, you know what the outcome is going to be in terms of the advice you’re giving, and you want to put that over and say, “this is what’s going to happen.” You’re not going to negotiate as hard with the other party, and you’re going to be pretty firm in your spot and if both of you are like that, you’re both going to be firm in your spot, you’re really just talking about commercial incentives to resolve, which is what it would cost to get the outcome. And very often you’re dealing with people, they might be in dispute of about 200,000, but it’s going to cost them each 100,000 to see whose lawyers, right? I’ve asked the question a number of times. The lawyers I deal with are lovely. They’re all beautiful. And I would love to spend time with them, but would I be willing to give 100,000 to find out if they were right? If it goes to trial, what’s going to happen? The answer is very rarely, yes. The answer is usually, “no, I’d rather keep the money or I’d rather part with some of it now to see.” So there is that. I can understand why people would be pretty concerned about putting their best final offer in the proposal they give, but it might be worth considering, why don’t you put your best final proposal in a mediation paper based on what your client says they’d be willing to accept, but add onto that the kind of costs that would be associated with running to trial and deal with it that way but what I do see is that practitioners who have really busy practices, who have a great gravitas in the profession in this particular field, with all of it – inheritance disputes or family law, whatever it is – they’re usually quite adamant in their views of what’s going to happen. They put a marginally better result in the mediation position paper. And the outcome of that is going to be that they’re going to be pretty close to what they thought they were going to get. |
| 00:29:00 | DT: | Interesting. So they basically put forward an offer that largely resembles the final outcome. |
| AB: | With a contingency fee, you know? | |
| DT: | Yeah, I see. | |
| 00:29:09 | AB: | And I know this, the ones that are having the hardest time with their clients, I’ll get a position paper. I form views. I very rarely give views in a mediation unless both lawyers tell me to because I think it’s a disrespect to the lawyer but often I’ll see a really large discrepancy in what people want and it usually has to do with a client who wants an outcome that will permit them to be able to, in most cases, keep a particular property, borrow a certain amount of money and they retrofit the outcome into that. |
| 00:29:43 | DT: | Yeah, I see. |
| 00:29:44 | AB: | And that’s very hard. That’s really hard. |
| 00:29:46 | DT: | Yeah. When you come into the mediation with that very forceful, uncompromising position, you’re fighting a battle on two fronts because now you’ve got to try and push your client to make a compromise that they weren’t prepared to make. |
| 00:29:57 | AB: | That happens all the time and I find with those ones, I’m generally brought in to try and tell them, reality check, what they’re likely to expect if it goes on. |
| 00:30:06 | DT: | Yeah. What are some of your tips for helping a client to kind of reality check before the mediation, helping them to understand? If it’s possible… |
| 00:30:15 | AB: | I don’t think it is. I think you’ve tried by the time you get there, you’ve tried. See, it’s got to do also with what you deal with because sometimes the client tells you what the outcome is that they want and they tell you, this is what I want and it doesn’t matter how many times you tell them they’re not listening to you and they’ll keep paying you money with the reality being that they’re never going to get that outcome and the purpose of the mediation is to deal with that but in terms of when you talk to them, the most you really can do is say to them, “I’ve told you this a thousand times, this is what’s going to happen. I can go and ask for this. It’s not going to happen. He’s never going to agree to it or she’s never going to agree to it. So I can do that but the reality is we’re going to look like we don’t know what we’re talking about.” |
| 00:31:00 | DT: | Yeah. |
| 00:31:01 | AB: | “My reputation is very important to me and you’re not listening to what I’m telling you. So we’re going to pay for Angelo to talk to you about why you’re not listening to me.” |
| 00:31:14 | DT: | Yeah, it’s a tricky position, isn’t it, because obviously our ethical rules explicitly say you can terminate your retainer if your client doesn’t follow your advice on anything except for accepting an offer of compromise, right? So this is the one area that’s out of bounds for taking your toys and going home. So I guess you do just have to say, “look, if that’s your position, then I’m going to fight a losing battle and we’ll waste money on this mediation and off we go.” |
| 00:31:37 | AB: | And we go, like not to brag, but I have a very high success rate with mediation. So people, even with those kinds of clients do resolve, but it’s really just about trying to get them to the point of understanding that just from another perspective, without having them leave you and go to another lawyer to hear the same thing, usually. That’s why I don’t want to do really much client work. I don’t want to deal with that. I really don’t. |
| 00:31:57 | DT: | Yeah. Who’d want to do that? |
| 00:31:59 | AB: | I like dealing with lawyers. I really love dealing with lawyers. They seem to understand me and I understand them. |
| 00:32:05 | DT: | This is a question a bit about preparing for mediation, a bit about conducting one. All of us who are experienced negotiators have read Getting to Yes and Never Split the Difference and all these books about interest-based negotiation and identifying the underlying interest that sits underneath the position, different currencies in which you can negotiate. So if we can’t move on money, can we move on time? Is there something intangible? What’s your view on all of that? Is that real? Is that useful stuff? |
| 00:32:32 | AB: | It is. No, no it absolutely is. And I did training for it. So at the court, we had stacks of training on mediation. We didn’t do mediation at court necessarily, we were doing conciliation, which is similar to mediation, but we were giving views very often. Mediation, you don’t generally give a view. I do some evaluative mediation if I need it, but it’s very rarely needed and as a mediator, you don’t need to do it often but with the idea of interest based negotiation or generating options, it is real. It is often about dollar figures, but the dollar figures are associated with “I owe money to my parents for the lawyer. I want to buy a house in a particular area.” The number of times we’ve gone on realestate.com in private sessions to work out how much a house or a strata complex property is going to cost, I couldn’t count on my hands. It’s a number of times. So very often there are underlying wants that aren’t necessarily tied to how much money’s there. |
| 00:33:32 | DT: | Yeah. |
| 00:33:33 | AB: | And some of the most interesting kinds of mediations I’ve had have involved people coming to agreements that mean that we’re all agreed on what we should get at a certain time but the time’s going to be a long time away, and it’s going to be based on a number of different factors that are going to ensure that we can wait at a certain date to affect this agreement, typically when the kids reach a certain age, or when someone reaches a certain age, retirement age, or whatever it is. And it really is about that timing’s very important, but it’s really about what they want the money for or why, very often, why they feel they want to spend more time with their kids. That’s really interesting. |
| 00:34:17 | DT: | Yeah. |
| 00:34:18 | AB: | Yeah, and I never understood why people spent hundreds of thousands of dollars fighting over children and now I understand totally, just to see your kid, why you would spend so much money. And very often people feel as though it’s not so much the amount of time they’re seeing their kid, it’s the quality of the time, or the feeling that they’re being cast aside as a non-parent or a lesser parent versus the other parent who’s going to have the kids more of the time. Well, yeah, or less and I only get him or her or them on the weekends. |
| 00:34:51 | DT: | Well, yeah. As a Father of young children, so much of my identity is bound up in being a father now. Like, it would be extremely difficult to have that taken away from me five days out of seven. |
| 00:35:01 | AB: | Oh, yeah. I only really get to see my kids right now on weekends when I’m not working, or if I make it home in time for bedtime, or in the morning just before I go to work but if I didn’t have that, you’d go mad. You’d do anything you could to be able to have that but I already know that having seen what I’ve seen, that coming to an agreement with someone that the kids are going to be the majority of the time with another parent versus you, it doesn’t mean you’re any less important in that child’s life. It just means that you’ve come to an agreement or a decision that it’s probably easier for all of us that this kind of parameter be put in place for us to be able to raise the kids properly. |
| 00:35:49 | DT: | Do you have any tips about how to uncover some of those interests or how to demonstrate their value because I had an experience, this is years ago, but it stayed with me because it was such a failure of interest based negotiation on my part. It was an estates matter. I was for the very elderly widow and executor. All of the deceased’s estate had been left to her. There were seven children. |
| 00:36:14 | AB: | Who wasn’t their mother, necessarily. |
| 00:36:15 | DT: | Yeah, you’re familiar with this sort of matter, so. |
| 00:36:18 | AB: | We’re seeing the tip of the iceberg with that stuff. |
| 00:36:20 | DT: | Oh yeah, the wealth transition… |
| AB: | You’ve got no idea how bad… Yeah, yeah, yeah. | |
| DT: | … is going to be enormous but she said, “I’ve got, health issues and other ongoing living needs. This is the amount I’m going to keep but I’m going to give an equal amount to all seven of you as long as you agree to release the estate from a family provision claim.” Six children agreed to that, the seventh didn’t and tanked the whole thing, she commenced proceedings under the Succession Act and that’s where I came in mediating that dispute and I really believed that she had an interest in having a good relationship with her six siblings. | |
| 00:36:54 | AB: | Yeah. |
| 00:36:55 | DT: | That what she had to understand was that it wasn’t a dispute between her and her stepmother over who got this money because every dollar she got, that was one seventh or one sixth of a dollar that the other siblings didn’t get. And so, I went into this mediation really believing that that was a lever I could pull and I remember saying in the mediation, you know, we weren’t far apart, I said, “do you really want to lose a relationship with your six brothers and sisters over $30,000?” And she said, “no, I just want the cash” and I was floored by the position that someone was prepared to never speak to their immediate family again over an amount of money, less than an annual salary, right? Like $30,000. And I wasn’t sure if I had just really overestimated the value of a connection with brothers and sisters. I’m an only child – maybe I see it more valuable than what it is or whether there was something I could have done. |
| 00:37:45 | AB: | I’m not shocked by this by the way, at all. |
| 00:37:47 | DT: | Well, I guess that’s what I’m asking. I’m wondering if there was something I could have done in that moment or another practitioner in a similar situation could do in that moment to demonstrate the value of the interest over the position. Do you know what I mean? To get the parties thinking about the non-financial. |
| 00:38:01 | AB: | Yeah. Well, getting them to think about the non financial, she clearly couldn’t have cared less about that, I mean, maybe she was in some way concerned about both, but the money was more important because there were underlying reasons behind the need for that particular money. |
| 00:38:16 | DT: | Yeah. |
| 00:38:16 | AB: | So I guess exploring why that was the case for her might have helped. |
| 00:38:21 | DT: | Yeah. |
| 00:38:22 | AB: | Because you know, if you’d asked her, I don’t know this particular case, but if you’d asked her, “what do you think the other six siblings would say if they were here now about what you’re doing?” I guarantee you asking her that question would have caused her to think about precisely what they would have said, because it’s what she thinks they would have said, not necessarily what they would have said, what she thinks they would have said, and it would have revealed to you something about her thought process. “Well, who cares what they think? They were always like that to me, right?” Or “who cares what they think? They’re all rich. I’ve got nothing. I don’t care if they get nothing either.” I don’t know if that was the case here, but there often is. The best question you ask is, I always ask this; “so what happened? What caused you to be in this particular dispute?” So if it’s a divorce. “Why did you guys separate?” If it’s an inheritance dispute, “what caused you to be cut out of the will?” They give you an answer. The second question you ask them is, “if the testator, your wife, was here now, what do you think she would say was the reason why you’re in this situation?” “Oh, she would probably say..” some far outlandish thing that has never come up before. We’ve never spoken about it. And the lawyer’s hearing it for the first time. “Oh, she would probably say, I’m an ice addict,” or “she would probably say, I’ve got a problem with gambling but she’s mad,” whatever the situation may be, it creates for you an understanding of at least what the perception is in the other room. |
| 00:39:58 | DT: | Yeah. |
| 00:39:59 | AB: | I did a whole talk on this. It’s one of the best questions you could possibly ask. |
| 00:40:02 | DT: | Fascinating. |
| AB: | Yeah, no. Use it. | |
| DT: | I’m going to file that one away because you’re right. It doesn’t matter if it’s accurate, it’s about the perception of the person you’re speaking to, their perception of the other side’s perception of them. | |
| 00:40:16 | AB: | And they will never lie about that. |
| 00:40:18 | DT: | Yeah. |
| 00:40:19 | AB: | They’ll never lie about that. They might lie about what their belief is, so they might either be embarrassed or scared or whatever, but they’ll never lie about what someone else. |
| 00:40:28 | DT: | Yeah, they’ve no reason to be afraid to attribute a thought to someone else. That’s interesting. That’s very interesting. |
| 00:40:34 | AB: | Yeah. That’s all right. Use it. Trademark it. |
| 00:40:37 | DT: | So far we’ve been talking about how we can prepare for and conduct mediations between parties who maybe there’s some bad blood. Maybe things are contentious, heated, but they’re still capable of being in a room and talking to one another. In family law matters, in particular, there are. Real practical challenges that can prevent that. |
| 00:40:56 | AB: | Like I had jail, someone was in jail last week. |
| 00:41:00 | DT: | Yeah. Well, that might physically prevent it but then there might also be family violence considerations, which the Evatt list picks up very very early on now. There might be mental health challenges that cause similar issues. Tell me a little bit about how you can adjust the ADR process to take into account some of that stuff. |
| 00:41:16 | AB: | Yeah. So that’s a really good question. So we generally deal with that stuff in family law very often. They used to have some statistic when I was at the court, I don’t know what the statistic is now, but it was 74% of cases that have reached court have got at least one risk issue in it – so it’s family violence or abuse, neglect, alcoholism, drug addiction, mental health, whatever it is – which is a very large percentage of the things you deal with there and what we became very good at doing. in the court and now out of the court is recognising pretty early on whenever you’re dealing with cases, whether or not people should be physically in the same place, digitally in the same place, digitally in separate rooms, whether someone would feel more comfortable being off a screen versus on a screen, whether someone would be more comfortable being away, even from their lawyer’s office so that they can’t be found. We became very attuned to that. I think COVID – we’re still talking about COVID – it was a huge part of us making that leap because I remember times when I would deal with very severe family violence and everyone was physically required to come to a courtroom for mediation with certain parameters put in place to ensure people were in safe rooms, but getting to court was scary, being around court was scary, and so that kind of stuff we’re very attuned to. And I’m speaking at a CPD we’re organising at the end of November on the male response to family violence, trying to deal with or stop family violence, and I’ve become incredibly interested in healthy masculinity and mental health because that seems to be the main driver for family violence. So we’re more attuned with all of that now than we ever were before. And why people behave in aberrant ways is more understood now than ever before. And it’s a really big passion project for me trying to work out what that part of the conversation is in dealing with really quite hideous allegations and how society can respond to trying to solve that, that’s also part of understanding it. I do point out that I’m the only male I know in family law, my age group, I’m 35. I’m 35? Yeah, I think I’m 35. |
| DT: | I’m 35. Are we the same age? | |
| AB: | Yeah, I think we’re the same age. Yeah. I think I’m 35 – doing this with any kind of serious presence, most people that do this job are a lot older than me, usually not from any culturally diverse background, or predominantly it’s female. Family law in general, I’d have to say the majority of lawyers I deal with are female lawyers, probably 70% of them. And so it’s always been very important to me that we have the understanding of how to ensure that families are kept safe with that kind of background and I seem to be getting engaged with people that are dealing with those particular issues and, in particular, men going through very either serious criminal charges or dealing with a number of risk issues, as though I would be more capable of understanding that situation or be able to offer an on par sort of understanding of what’s happening around them and really testing them. | |
| 00:44:40 | DT: | Right. rIt’s interesting. |
| 00:44:41 | AB: | Yeah. |
| 00:44:42 | DT: | When I was studying to be a lawyer, the kind of received wisdom was in those situations where there’s family violence, we called it domestic violence then, or there’s other risk factors that make it hard for the parties to be in the same room. You do shuttle mediation, right? You have people in separate rooms and you go back and forth but what surprised me when I entered real life practice was that almost every mediation I seemed to go to was a shuttle mediation, right? The parties ended up in separate rooms, they only ever spoke to their own legal advisors and then the legal advisors would meet with the mediator in the lobby where the mediator ate the cookies or the complimentary snack. |
| AB: | The mentos. | |
| DT: | Yeah, the fruit mentos that the venue provided. And that’s where you do the negotiation right? TIP: Now, Angelo and I have just been discussing shuttle mediation. If you don’t remember from your Alternative Dispute Resolution course at uni, this is one of several types of mediation methods available for mediators to employ depending on the circumstances. Let’s talk about a few others before coming back to shuttle mediation. Comediation, something else that Angela will mention in the episode, involves two mediators working together to help the parties identify the issues, explore the options, and develop solutions. This approach can be especially effective in complex disputes where there’s a lot of parties, or where the expertise or perspectives of two different mediators can offer added value, while still keeping the mediator’s role neutral about the content or the outcome of the dispute. A good example might be a case that involves several different areas of law, for example, a family law matter involving an insolvent company, where it might be useful to have a mediator with family law background and a mediator with an insolvency background. Another method is mediation arbitration, sometimes given the rather odd name of med-arb, which is a hybrid process that combines, as you might guess, mediation and arbitration. In this model, parties first attempt to resolve their issues, like in a mediation, but if they can’t reach an agreement, then the process becomes an arbitration, and the arbitrator makes a binding decision. The method offers the flexibility and possible consensual outcome of a mediation, with the finality and certainty of an arbitration providing a clear resolution if a mediation is unsuccessful. This type of mediation is common in cases involving large commercial matters, community disputes, or environmental matters, especially where there’s an arbitration clause in place that would otherwise require the matter to go to arbitration eventually. So back to shuttle mediation. This is an approach used when the parties are unwilling or unable to meet face to face, either because there’s a great deal of tension and animosity between them, such that they’re unwilling to, or because it’s unsafe for the parties to meet face to face, for example, in a family law matter where there’s the presence of family violence. In a shuttle mediation, the mediator moves between the parties who are located in separate rooms or even separate locations, and they meet at different times. The mediator facilitates communication between the two shuttled parties, helping each side to explore options independently, and then work towards a resolution without a direct confrontation between the two sides. Shuttle mediation can be necessary in cases where there are safety concerns, but even where there aren’t safety concerns, it can be really useful in disputes where a lot of emotion is involved, and situations where direct interaction between the clients might escalate tensions and be counterproductive. Unfortunately, I often see shuttle mediation being used even in circumstances where there isn’t a great deal of tension and where the parties would be well served by a lot more joint interaction. It surprised me that this tool of shuttle mediation, which I thought was for these high risk, emotionally charged situations, seem to be the norm. As a mediator, do you try and get people out of the isolated room? Try to get people into the same room, because it’s rare and hard. | |
| AB: | Only if it’s safe. | |
| DT: | If it’s safe, sure. | |
| 00:48:19 | AB: | If everyone feels comfortable doing it in some way, it’s always great to follow the traditional model of mediation where everyone starts, at least after their pre-mediation session, in an open setting because it means a lot more, I think, for everyone to hear what everyone has to say, particularly the clients, if they’re willing to speak about what they want to get out of the day. When you start with a shuttle mediation, you’re totally basing your understanding of what’s happening in the other room on me and the lawyer that you’re dealing with and it’s not in any way the same. Sometimes It makes sense to do shuttle mediation. If your client is one of those people that just won’t be able to compose themselves in a proper way, or will say something horrible and the whole day will be wasted. Sometimes, yeah. And sometimes I form a view that it won’t help if we sit in the same room. |
| 00:49:26 | DT: | I guess increasingly the circumstances which would have suggested shuttle mediation is appropriate are probably the circumstances that today suggest remote mediation is appropriate, right? |
| 00:49:36 | AB: | Yeah. Yeah. |
| 00:49:37 | DT: | But, we were talking about this before the show, remote mediation, a bit like shuttle mediation has become the norm for every mediation, whether or not it’s appropriate for a safety reason or not. |
| 00:49:47 | AB: | And I offer people the opportunity to have me go physically. I’m doing one on Friday where the lawyers believed that it would be appropriate that I’d be physically present for one of the parties, who would prefer to have me physically present, and the other party’s going to appear virtually with their lawyer virtually. And there were a number of reasons for it; some of it was safety, some of it was to ensure everyone felt okay with it but some of it was that the lawyer felt that the client would be more receptive to me if I was physically present and human presence and human touch, it’s a very important thing. I’ve started doing CPDs where they’re not online, you have to physically go to the lawyer’s office to watch it and have a drink and socialise because we lost all that when we were in COVID. There’s something about being present, but there are all sorts of ways that you can do it to ensure everyone feels like it’s a good time. It’s not a good time, but it’s whatever it is. |
| 00:50:43 | DT: | I guess I keep thinking about the commercial mediations that I’ve been a part of because I’ve never really been a family lawyer, but often it seems to me like the parties are almost trying to pull back to this; even if you start with a joint session. It’s a little bit perfunctory. It’s a little bit brief. And then someone will say, “well, let us go back to our room and we’ll have a think,” and then you never come back. Do you have any tips for trying to keep people together? |
| 00:51:07 | AB: | Even the commercial disputes I’ve dealt with, I have brought them back. And if you follow the classical model, you’re meant to be there physically in the same room, jointly in the beginning, you’re meant to break up, you’re meant to talk to each other in the confines of your own space about options to resolve and when you get those options in various rooms, you’re meant to all come back, and everyone’s meant to say what their proposal is to resolve it, versus the others. And then you identify where the difference is, and what we can do to bridge the gap between those differences. I always try and get people to come back. Sometimes it helps. Many times it helps as a last resort if you want to stay in separate rooms, but you’ve got to rely on the mediator. The mediator has got to be able to have some level of emotional intelligence to understand whether or not that’s going to help and I find it often does. |
| 00:51:59 | DT: | One strategy that I’ve seen as a Hail Mary, speaking of last ditch efforts, is to get the practitioners out so the parties can talk to one another direct. |
| 00:52:08 | AB: | Yeah. Yeah. Yeah. |
| 00:52:08 | DT: | Obviously, where we’ve got safety issues, we can’t do that but… |
| 00:52:11 | AB: | I have done it without the safety issues but sometimes the lawyer will say to you, “look,” without the client present, “I can’t do this anymore,” or I need you to, “if you want to talk to both of them, maybe that would help without us around,” because either the lawyers perceived that they can’t, or the other lawyer is a problem and the other lawyer is derailing settlement. They’ll often ask you to come together and try and talk through it with one another. And yeah, when they come in, I’m usually talking about very human things. I’m very rarely talking about things like the offers or percentage ranges or nights in a day. I’m usually talking to them about “why is it important that we do what you want?” And “why is it important we do what you want?” And “where do you want to see yourselves in 10 years time?” Particularly when you’re dealing with parenting or when you’re dealing with siblings in an inheritance dispute, sometimes it works. What kind of relationship do you want with one another after today? Because there’s no point if you’ve got young kids that after today, the two of you are just going to hate each other. |
| 00:53:12 | DT: | Yeah. |
| 00:53:12 | AB: | Or the two of you are going to have a situation that no matter what, you’re never going to be the parents that get to sit at the same wedding, near each other, at the same table. There’s no point if you’re going to be in constant disputes over the next 10, 15 years because guess what? When kids reach 18, they’re still relying on you even after that to help them buy their first home, pay for a wedding, go to a graduation. You’ll still be physically present in one another’s life. So it’s a lifelong commitment that you’re reaching now dealing with one another today. So what does that look like to you? People don’t realise that as soon as the lawyer leaves – who they’ve got almost a trauma bond with with the stuff they’ve gone through, some of these people are in court for years – the lawyer leaves after they’re no longer needed, you very rarely have anything to do with that lawyer ever again, unless something happens and then you’re stuck raising kids or dealing with your siblings or whatever it might be for the rest of your life and you’re going to have to interact with one another. One of the things I’ve done when it’s the joint sessions is I’ve asked people to say “hello” to one another people never say “hello” to one another when they walk into those joint sessions. |
| DT: | Yeah, it’s true. | |
| AB: | Or they’ve been raising a kid, they’ve been doing a pretty good job raising their beautiful little four year old girl – I remember this one. They were lovely people. They were in their 30s, they were a young couple. It was when I was at the court. And they didn’t have lawyers, they just wanted to work out what they were going to do with the kid. The last time they had said any words to one another was when the kid was three and the kid now is five or something like that. | |
| 00:54:53 | DT: | Wow. |
| 00:54:53 | AB: | Yeah. I said, “do you want to say good morning?” “Hi, good morning.” And she laughed and she said it back and he laughed and what occurred to me was they’d never actually thought about what that absence of an interaction must have been doing to their kid who was going to these changeovers from one house to another with their parents. |
| 00:55:17 | DT: | Yeah. Like walking through the demilitarised zone. Yeah. |
| 00:55:20 | AB: | Not even talking to each other. Not even saying hello to each other, not even sharing pleasantries, even fake pleasantries and the child is half each of them. It’s not one of them, it’s half each. And so it would only have occurred to that child that these people are not comfortable with one another, which means they’re not comfortable with half of me because I love both of them. |
| 00:55:38 | DT: | Yeah. |
| 00:55:39 | AB: | So that in itself, I think you would bring people together just to be able to talk them through those realities but yeah, lawyers love to be shuttled. They love to be away from society, sitting there. |
| 00:55:51 | DT: | Love to be away from one another. |
| 00:55:53 | AB: | To get emails done. Like it’s more physically taxing in that you have to spend time being around each other but yeah, the shuttle doesn’t always help. |
| 00:56:01 | DT: | No. No, it seems a little inefficient to me sometimes. |
| 00:56:05 | AB: | Yeah, it does. |
| 00:56:05 | DT: | Except for the people who are doing their emails in between. |
| 00:56:09 | AB: | Yeah, well, yeah. You’ve got other work. And that’s, I think, a big part of the online stuff is lawyers have other work to do so it makes sense “while I’m doing that, I can do some of this.” |
| 00:56:16 | DT: | Yeah, but I mean, you’re charging for that day, right? |
| 00:56:19 | AB: | Me, I get paid, but the lawyer, I don’t know what they charge. I assume they’re charging for the whole day, but I’ve never asked, I’ve never cost assessed them on that. |
| 00:56:27 | DT: | Which, yeah, I guess you have the luxury of not knowing. Mostly the work that you do in your mediation practice is family law mediation and succession mediation, but you do do some family law mediation. |
| 00:56:37 | AB: | Yeah, I’ve done that. |
| 00:56:38 | DT: | Tell me a little bit about bringing that non-financial emotional stuff into it. |
| 00:56:44 | AB: | Oh, where they’re in a commercial dispute? Well, do you know what? Sometimes when you’re dealing with commercial disputes, definitely the ones I’ve got experiences with, some of these people were in businesses together for years, and they’re usually closer to them than any family member they’ve ever had. |
| 00:56:58 | DT: | Yeah. |
| 00:56:59 | AB: | And the intensity of the relationship is such that when they have a fallout, whatever’s happening that’s caused the business to have to dissolve or when they’ve gotten into a fight over a contract, whatever it is, they’ve been able up to that point to work it out but something’s happened in the background that suddenly caused all of this to fall and you’d be surprised how often it’s something totally human. And it sometimes has nothing to do with the business associate they’re dealing with, it’s usually got something to do with home or perceptions of what society will think of them if they give an inch. Like very often you deal with businesses where they think “if it gets out that I resolved a deal. With him after what he’s done to our business because he’s passed off or he’s taken work or whatever it is, it’ll get round and then we’re going to be dealing with a hundred of these, or we’re going to be dealing with whatever number of people trying to take advantage of the business. So we’ve got to make a stand now.” |
| 00:57:57 | DT: | Yeah. |
| 00:57:57 | AB: | And from the other perspective, you’ve got someone who feels hard done by because they’ve been promised something for years that’s never eventuated or very often that’s psychologically personal to these people and it does have a lot to do with money and it does have a lot to do with commerce and what you’re dealing with, but it’s deeply psychologically personal. |
| 00:58:16 | DT: | Yeah because I wanted to ask that because I think it’s important to recognise that a lot of what you’re describing around identifying some of the emotional interests in these disputes applies just as much to commercial practice. Certainly a lot of the disputes I deal with, shareholder disputes, a big part of getting to a position where the parties can negotiate is helping them understand that no one has to have been dishonest here, right? Sometimes dishonesty happens and sometimes people are misled, but sometimes businesses fail without either party wanting them to fail. Sometimes businesses fail despite everyone’s best efforts. You don’t have to be enemies, right? Like there’s often an assumption to work back from that this other person is dishonest, that they’ve cheated me. |
| 00:58:59 | AB: | They’re the ones at fault. |
| 00:58:59 | DT: | They’re responsible somehow, and all of these levers can be pulled in the commercial context as well. |
| 00:59:06 | AB: | Yeah. And actually probably all the business disputes I’ve dealt with, they related in some way as well at times. |
| 00:59:12 | DT: | Yeah, that’s true. |
| 00:59:13 | AB: | Family business, when I grew up, my dad had many business fallouts with his brothers who he went years without speaking to and then they’d come back and they’d have another fallout and they’d never speak to each other and they’d get back together. So you do deal with that too. |
| 00:59:27 | DT: | Yeah, absolutely. I’ve worked for a lot of family businesses and you can’t discount the family relationship and I guess we could probably leave this for another podcast, but the parties who you might want to involve in the mediation are not always the parties in the pleadings, right? In the sense that I can think of one example; a family business, it’s acting for one brother, it’s two other brothers, they were the parties to the dispute but the real player… |
| AB: | String pullers. | |
| DT: | … who, yeah, had all of the power in the family and who could bring everyone to the table and really make them think about a deal was mum, right? Not a party to the dispute, but a vitally important person to have involved in the negotiation. | |
| 01:00:03 | AB: | Yeah. And she should be there. So often people bring support people and sometimes that causes people to arc up. “Why should they have a support people and me not?” I would much rather a mediation where the support person is there with the other party, because guess what? As soon as I leave the room, they’re going to get on the phone to that support person. |
| 01:00:25 | DT: | Yeah. |
| 01:00:26 | AB: | Tell them their understanding of what’s happened, which is probably twice removed from what the reality of the situation is, because everyone can watch one thing and have different views on it and they’re going to get advice from that person who hasn’t heard from me, the lawyer, the other party. I’d much rather have that person present. It’s really important to me that they be at least in the private sessions, because if they’re the ones pulling the strings and you want a deal done, they’re the ones you’re going to have to convince as well. Yeah, it’s true; mum, the new girlfriend, the father of the bride, who was always the problem, apparently, these people have to be present. |
| 01:01:00 | DT: | In that matter, mum ended up represented. |
| AB: | There you go. | |
| DT: | And attending effectively as another party rather than as a support person. | |
| 01:01:08 | AB: | No, an interested party so to speak. |
| 01:01:10 | DT: | An interested party. Her interests were not at all under threat. |
| AB: | Or known at any point. | |
| DT: | But she was still there and represented because of the role that she played in the negotiation. So yeah, it’s interesting. You don’t just count down the originating process and go, that’s the people that need to be in the room. | |
| 01:01:25 | AB: | That’s right. You’d be surprised how often that’s the case and how often the lawyer doesn’t even realise that they’re dealing with that. They’re dealing with a support person. I wonder how different it would have been if that support person was there the first day they went and saw a lawyer versus coming much later. |
| 01:01:43 | DT: | Yeah. I guess this also goes back to, again, thinking about the commercial context, preparing for the mediation, making sure that you’ve got the right people from your client present who can give you the instructions, because you see this all the time in commercial mediations, and the mediation agreement says that the parties there from the client are supposed to have the authority to settle the dispute but in reality, there’s so often you see… |
| 01:02:06 | AB: | No, they’re going to go home. |
| 01:02:07 | DT: | … “Hang on, I’ve got a call and I’ve got to check that I can make this offer. I’ve got a call and check that I can accept it.” That just adds so much friction to the process. It makes it difficult to have a candid conversation and I think it’s part of the reason why we end up defaulting back to that shuttle process, because if you don’t have authority, you can’t actually have a conversation about options. |
| 01:02:26 | AB: | No, that’s right. Yeah. And that happens and maybe you do need them there. |
| 01:02:28 | DT: | Yeah, I remember one commercial mediation during COVID, so we were all remote. |
| 01:02:32 | AB: | Yeah. |
| 01:02:33 | DT: | The other side didn’t have the right person there and we were fighting over a ridiculous amount left to go – a $50,000 a apart or something like that. |
| 01:02:40 | AB: | Yeah. I need a higher up. |
| 01:02:41 | DT: | And my client had still quite a good relationship with the CEO of the other party, they didn’t speak often but it wasn’t tense. |
| 01:02:49 | AB: | I’m going to call him. |
| 01:02:50 | DT: | So he just said, “look, this is silly, I’m just going to call.” And so he called the CEO and they had a polite chat, and then he got off the phone and then the client on the other side got a call and then it was done. |
| AB: | It was done. | |
| DT: | But that settled at 7 or 8 PM. I wonder if we had to be there all night, if it was the CEO who made the time to be there. Not that that’s always possible. | |
| 01:03:12 | AB: | Yeah, no. I like that one. That one that we had when we were, we’re talking, how many years ago was that? 15 years ago. No. |
| 01:03:18 | DT: | It would have been 10 years, I think. |
| 01:03:21 | AB: | At least. |
| 01:03:22 | DT: | I think, yeah. |
| 01:03:24 | AB: | A deal fell over because we had to go to a higher up, not for your client. I think the ATO, I think it was the ATO. |
| 01:03:31 | DT: | Yeah. That sounds familiar. |
| 01:03:32 | AB: | Yeah. We’ve reached the limit of this particular lawyer’s…. |
| 01:03:36 | DT: | This particular czar. Yeah. |
| 01:03:38 | AB: | And the person I’m getting directions off has to get another direction. The government is very hard like that. |
| 01:03:43 | DT: | Yeah and I imagine a semi regular participant in the disputes that you’re mediating. |
| 01:03:48 | AB: | Yeah. |
| 01:03:49 | DT: | We’re nearly out of time but before you go, I wanted to ask you to do some crystal ball gazing, some prognosticating. |
| 01:03:54 | AB: | Yeah. |
| 01:03:55 | DT: | You’ve seen ADR practice, mediation practice change a lot in the last 10 years, especially since COVID, the move to more remote digital mediation. I wanted to ask you where you see mediation going in the next five to 10 years. |
| 01:04:12 | AB: | Oh, that’s a good one. |
| 01:04:13 | DT: | How practice is evolving in the space. |
| 01:04:15 | AB: | Yeah. |
| 01:04:16 | DT: | And what our listeners can be doing to prepare for that. |
| 01:04:18 | AB: | That’s a really good question. I think it’s probably going to become more common, even more so than we have now. You’re probably going to see a huge volume of inheritance disputes over the next 10 years. You’re also probably going to see that just like we have law firms now where you’ve got several lawyers working at a firm, it’s going to be more common that you see very large firms of mediators, which in family law, there are some that have a number of people. I have a mediator that works with me as well. You’re probably going to see something called tandem mediation a lot common. Have you ever watched Wedding Crashers? |
| 01:04:55 | DT: | I haven’t actually seen Wedding Crashers. |
| 01:04:56 | AB: | They were actually mediators. So the beginning of the movie, they’re mediating, funnily enough, a family law dispute, and they do it as a team in America very often. You’re probably going to see a bit more of that around. |
| 01:05:08 | DT: | That’s interesting. I’ve never seen that. |
| 01:05:09 | AB: | Works very well when you’re dealing with a lot of parties because you can go off, deal with them, I’ll go off deal with them. |
| 01:05:16 | DT: | I see. |
| 01:05:16 | AB: | Come back to me, you see what deal you think we can reach, right? And it works well with us because Christina Lam’s, the other mediator I’ve got, she is an independent children’s lawyer, worked at Legal Aid, is a family dispute resolution practitioner, I don’t have that qualification, and she is able to deal with parenting incredibly well and I do a lot of parenting, but I also do a lot of property, majority of the time it’s property, equity, and trust and things like that. So we complement each other very well when we’re dealing with both of those issues with people and we have different personalities. That sometimes helps if you work well with a team. So you’re going to see, I think, a bit more of it. And you’re probably going to see people diversifying the type of mediation they do, they won’t be siloed. So you won’t be just a family law mediator. You’ll be a mediator in a variety of different aspects of law or just disputes in general. So that’s what I see happening. |
| 01:06:13 | DT: | Interesting. It sounds like you’re describing kind of mediation both as an activity and as a profession growing pretty dramatically. One factor in that is, of course, the great succession that’s coming with the wealth transfer from the baby boomer generation to millennials but I guess, what are some of the other drivers that you see for that growth of the mediation profession? |
| 01:06:35 | AB: | The economy is going to not be great, I think. So I think probably from now, over the next five years, probably going to be pretty tough for a lot of people, that’s going to drive a lot of problems. In terms of with family law, the divorce rate’s always been somewhere around 33-38%, which they base on people married in a year versus people that divorce in a year, that’s not going to change very much. With inheritance disputes, the thing that’s going to change very much is you have so many mixed families now that it’s almost going to be certain that that 33-38% divorce rate, those people have gone on and started other families, they’ve had children with other people who are all involved in whose assets are all pulled together and sometimes guess what? They don’t all have great relationships with one another. That’s probably going to be a major driver in those kinds of disputes but I also see that people becoming more intuitive and introspective about themselves, but also with children, raising children. And so there’s a big push now to get parenting coordinators involved, which is like a sort of mediator that follows you along the path of raising your child. That’s a new thing that didn’t exist before. I think that’s probably going to be more common too. That’s big in the US, but it’s going to be more common going forward. And collaborative law is probably going to be a lot more common. They’ve been saying that for a number of years though, probably 20 years, collaborative law has been a thing. |
| 01:08:04 | DT: | Yeah. We did an episode on collaborative law a few seasons ago. I, as someone who you probably guessed wishes that we could all be a little bit more collaborative in a whole range of different ways in our profession, I really liked the idea, but you think it’s still got a little while before it hits the mainstream. |
| 01:08:22 | AB: | I think people are still stuck in the idea that litigation makes you a lot of money. And so there’s a fear that if you do collaborative law, you lose the client but if everyone’s doing collaborative law, a huge proportion are doing collaborative law, there’s a likelihood that you won’t lose the client because a lot of other people are collaborative lawyers and they might be able to represent you in the litigation space, but they’re probably going to encourage you to do collaborative law in the first place anyway. |
| 01:08:48 | DT: | Yeah, I see. More of a bifurcated profession where we have the collaborative lawyers. |
| 01:08:52 | AB: | Versus the litigation lawyers. |
| 01:08:54 | DT: | Yeah. You were going to call them bulldogs. |
| AB: | The fun people. | |
| DT: | Yeah. Angelo, thanks so much for joining me on Hearsay. | |
| 01:08:58 | AB: | Thanks for having me. This was fantastic. |
| 01:09:09 | DT: | As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank my guest today, Angelo Bistolaridis, for coming on the show. Now, if you’re a family lawyer listening to this episode and you need a substantive law point as well, why not check out our recent episode with barrister Chauntelle Ingenito. That one’s called ‘Balancing the Scales: Best Practices When Dealing With Self Represented Litigants’, and that’s episode 121 of Hearsay. If you’re an Australian legal practitioner, you can claim one continuing professional development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self assessed, as you know, but we suggest this episode entitles you to claim a professional skills point. For more information on claiming and tracking your points on Hearsay, please head to our website. Hearsay the Legal Podcast is brought to you by Lext, a legal technology company that makes the law easier to access and easier to practice, and that includes your CPD. Before you go, I’d like to ask you a favour. If you like Hearsay the Legal Podcast, please leave us a Google review. It helps other listeners to find us and that keeps us in business. Thanks for listening and I’ll see you on the next episode of Hearsay. |
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