Radio Mediation Interview

Transcript of the ABC Interview :

K. H-Divine: Making the decision to divorce or separate is only the first step in a long and often painful experience, as you may know. Sorting out finances, division of assets, and then of course there are the custody arrangements if there are children involved. Randal Binnie is a Brisbane based divorce lawyer and mediator. Hi Randal.

Randal Binnie: Yes, good afternoon.

K. H-Divine: How much of what you do is, mediation in the end, is trying to get two parties who can be suffering quite a level of conflict to come to some level of agreement?

Randal Binnie: It can be a struggle at times, but it’s a worthwhile process, because at the end of the day people do make their own agreements. Which is really more important than … and probably and a better way to resolve things rather than have someone else, like a judge, tell you what to do.

K. H-Divine: What’s the role of mediation in divorce and separation in Australia?

Randal Binnie: Mediation’s become more and more important, particularly since about the late 1980’s. So it’s been in Australia a long time. In the early 1990’s the legal aid offices around Australia, particularly in Queensland, were conducting legal aid mediations that involved lawyers and their parties, and they still do that today. But really, mediation took off, if you like, in first of July 2007 when it was legislated by the government, that in family law matters involving children, before anyone could go to court, they need to engage in mediation.

K. H-Divine: As a divorce lawyer, why should couples try and resolve their issues in mediation rather than in court? What’s the benefit?

Randal Binnie: Well, there’s a long list of benefits for mediation. Perhaps I’ll just address some of them.

K. H-Divine: Yeah.

Randal Binnie: One is that mediation is confidential. It’s not in the public arena quite as much as going to court. Even though family court proceedings are sort of a protected type of proceedings and can’t be published. But still it is confidential. It doesn’t involve sitting in a court with lots of other people, as it does in the family court. It’s very much quicker than litigation in the courts. It could be over and done with perhaps one session of four to eight hours, or a number of shorter sessions over a few weeks. So it takes weeks rather than many months or years to get a decision, or an agreement I should say, rather than a decision in a trial. A trial and a decision from a judge in the family courts.
It’s definitely less expensive, of course. That’s fairly obvious. And mediated outcomes provide a certainty to the decision that’s being made, and it’s more accepted the parties because they’ve created it themselves rather than having it imposed on them by a judge. And sometimes when decisions are imposed on parents by a judge, I’ve seen it before where both parents don’t like the outcome and have to come to some other agreement, because what the judge has done just doesn’t suit them.
The relationship between the parties usually is … it’s certainly not damaged, sometimes enhanced by the mediation process because they can see they have to work together, and can work together to come up with mutually agreement outcomes, I suppose is the way to put it. It’s certainly more creative. In other words, the parties, and sometimes the mediator might help create some outcomes or possibilities, but mediated outcomes can be much more creative than a court. Courts are limited by what the legislation allows them to do. Whereas parties can create their own agreement.

K. H-Divine: Is a big slice of mediation handling people’s emotions as well, on either side? If there’s been cheating, for example, from one or both partners. If there’s been problems with an addiction of some kind, be that drugs, alcohol, gambling. Whatever might have brought about conflict with the relationship. Different parenting styles, for example. That can also cause massive amounts of conflict. When you get into mediation, how do you guide both parties to putting emotion aside, if that’s what you do, and reaching a decision?

Randal Binnie: Usually we’re not putting emotion aside. Sometimes we let that emotion come out, because it’s an opportunity for people to say what they’re feeling. If the mediation is being conducted in the same room, the concerns and probably the issues that one party is feeling and wants to demonstrate, the other party can get to listen to it, and that’s probably the best outcome from a mediation process, I suppose.

K. H-Divine: Mediation is often used in the context of working out the custody of children. What common tensions do you see in that area?

Randal Binnie: Usually the central issue in just about any parenting arrangement is the lack of trust that has developed between the parents. That’s a result of, quite often, someone leaving the relationship suddenly without warning, leaving the other person devastated and not knowing what to do or where to turn to. Or probably more often is the re-partnering of the person that has left the relationship, and that can happen before the relationship has even ended. Which is great shock to the person left behind. Those sorts of tensions are always heightened by that re-partnering. So it’s a concern to the parent left behind, where children are involved, that now there’s someone else involved that they don’t know. They don’t know whether their children are safe with them. And of course, there’s those emotional issues about being betrayed, which then causes that lack of trust.
The issue … just to clarify, the issue about re-partnering, really children shouldn’t be involved to a revolving door of new partners. It’s just not good for them. Particularly at a time when separation has just occurred. All they want to do is to be happy and be loved by their parents. And also during mediation, I also hear … perhaps, mothers of children, particularly, that during the relationship the father has spent little time with the children, and they’re surprised to learn that after separation he wants to spend more time with them, and in fact, sometimes an equal amount of time, or more.
It’s a difficult situation for people, but it is highly emotional. One thing I will say is that all of these emotional responses will settle down over time, and it’s most important for people not to rush into court after a separation, or start lengthy correspondence between lawyers even, because it just doesn’t help.

K. H-Divine: How then do you go about working out how much time a child should spend with each parent? That must be so individual, depending on the parents, and the child, and the ages, and how many they are, and all sorts of things.
Randal Binnie: I think you’ve just about mentioned all of them.

K. H-Divine: It’s complicated.

Randal Binnie: It is an individual thing, so there are no real rules about what agreements parents can make. I often remind separated parents that they once lived together and made decisions all the time about the children, so really what’s different? They just have to learn to parent apart, if you like, and continue that communication that they hopefully had when they were married.
To reach their own agreement, it’s most important because how … Well I don’t work out how much time a child should spend with each parent as a mediator. The parents are the creators of the agreement. I’m more facilitating the time and the conversation, or the time for the conversation to take place.

K. H-Divine: So then what’s your advice Randal, to couples heading into mediation?

Randal Binnie: When people head into mediation they’ve got to be aware that the mediator’s not there to make decisions for them. Quite often that’s a fallacy that people seem to have. The mediator is there to listen, most important. Most mediators are very good at listening. It’s part of the process. But also then, I suppose another part of it is reality testing. You have people say certain things to you that really you know aren’t reasonable, and perhaps we reality test those statements with people. At the end of the day, to prepare for a mediation, you really do need to be prepared, and that is to think about alternatives to what you currently think is the only outcome that’s possible. In other words, what you want, and you’re concentrating on that. When the reality is, there’s more than one outcome to any problem, so you need to have an open mind when you’re approaching mediation.
You need to be able to be prepared to listen to the other party’s issue and concerns. And sometimes that’s the first time people have heard those issues and concerns. It generally help the parties reach an agreement just by listening to each other.

K. H-Divine: This afternoon on ABC Radio, Brisbane and Queensland, we’re talking about divorce and you’re hearing from Randal Binnie, who’s a Brisbane based divorce lawyer and mediator. Just putting child custody aside for a moment, what about those couples … and this probably happens in your experience more often than people might think, that an older couple decide … You know, the kids have gone and they look at each other and think, “I actually have nothing in common with you anymore.” And it may not be that they don’t get along or whatever it is, it’s just that, you know, we’ve got nothing to talk about, and they decide to separate. It’s a very tangled web by then, of finances, and property. Houses, cars, whatever it may be. Superannuation. That must be a bit of a test too, as to how we’re going to unravel all this, and what’s fair for both parties.

Randal Binnie: Yes, and the question of what’s fair is the big question. Because everyone has a different concept of fairness. Generally speaking, people come to a property settlement mediation with legal advice and that legal advice is generally their guide as to what they think is fair. But with all property settlement issues, what everyone needs to keep in mind, and most family lawyers, or certainly experienced family lawyers will tell their clients, it’s impossible to give, in 90% of the cases, or even more, a precise outcome that might happen in court. That’s because it’s not a mathematical formula.
Judges have to abide by what the family law act says, but it’s a broad, I guess almost, a gut feeling about what the contributions have been by the parties. How long they’ve been together. What other issues are involved? Is one party at a lesser advantage or disadvantage because they can’t work, or there’s a great disparity in their incomes? So all of those issues a court will weigh up. But in mediation, it’s a little different. Whilst both parties will come to a mediation if they’re legally represented within the mediation, they’ll come to the mediation with their preconceived ideas of an outcome. Buy by working with the parties and their lawyers, and making offers two and fro, basically that’s what it’s all about.
There’s always, even if people don’t think they will reach an agreement, generally speaking that’s what they’re there for. They want this to end, and they want to get on with their lives.

K. H-Divine: Randal, what are some aspects of the divorce process that people can be unprepared for, or they have unrealistic expectations about?

Randal Binnie: Probably, the main aspect of that that I can think of is when people come to either a mediation or see their lawyer and they say, “I just want what I’m entitled to.”

K. H-Divine: Mm-hmm (affirmative)

Randal Binnie: It’s a very simple statement, but at the end of the day, the only way people find out what they’re really entitled to is to have a judge tell them the result. That can take an awful lot of money and an awful lot of time, and damages relationship and parenting arrangements all along the way. To get what you’re entitled to is really an unrealistic question.

K. H-Divine: Divorce lawyers have a reputation for burning out. Why can it be such a difficult job?

Randal Binnie: Family lawyers are dealing with people who are sometimes at the lowest point in their life. There’s feelings of grief and loss, anger, hurt, abandonment. There’s sometimes a desire for retribution, or to get even. There’s mental health, drug addiction, alcohol abuse, and they’re all fairly not uncommon factors that are involved. Then there are the unfortunate incidents where there is physical violence, family violence, and domestic violence. And also sexual abuse of children or abuse of children generally. They’re fairly disheartening things to be involved with.
But of course people, our clients are real people in the community. They come from all walks of life, and some have particular personalities that are difficult to deal with. People with say, high conflict personalities it’s often referred to, they are difficult to deal with. They often try to draw their lawyers into their world and make their lawyers responsible for their outcomes. And of course when it doesn’t work out the way it should, it’s the lawyers fault or the judges fault. It’s everyone’s fault except theirs. So you do have to manage those types of people as well.
You also have to remain sympathetic and empathetic, but at the same time remain objective and be able to give that reasonable and balanced advice that you need to give. Because if you get too involved emotionally, you won’t be able to do exactly what you’re engaged to do.

K. H-Divine: Randal, great talking with you this afternoon. Thank you.

Randal Binnie: Thank you very much.