Family Law in Crisis.

According to The Australian of 11 December 2015, independent Senators John Madigan and David Leyonhjelm are among a group of senators who have called for a "root-and-branch review" of the family law system. Senator Madigan has been pushing for a radical overview of the system to make it less adversarial in nature, arguing the current system is causing "inexcusable damage" to children.

Senator Madigan urged the government to "adequately resource the court to deal with things in a more expedient manner and have people in it who are properly trained".

He said "the court needs to be better resourced than what it is and people operating in the area of family law need to be trained in this area".

Senator Madigan also wanted to see the court operate in a way that brought families together , rather than "blew them apart".

Senator Leyonhjelm said: "You can't expect a court system to operate for the benefit of the public if they have to wait extended periods of time because there aren't enough judges. That's a no -brainer."

Clearly the court has a resource problem.However good steps in reducing the current pressure would be to refer more matters to mediation, particularly those with modest pools and to introduce compulsory mediation of property matters before parties are able to initiate court proceedings.

It will be interesting to see how far the independent senators get with their call for "root-and -branch review".

Travel to Mediation

It was pleasant yesterday to travel to Ipwich to conduct a mediation involving both property and children's issues.

Parties often don't realise that mediators are usually prepared to travel to suit the convenience of the parties.

In this case both parties lived in the vicinity of Ipswich and both legal representatives were based in Ipswich.

Sometimes depending on distance, some charge may be made for travelling time, however with the mediation being convened as close by as Ipswich, it was easy to make a decision to waive any charge for travelling time and mileage.

While it is always good to have the facilities on offer at our usual rooms on Wickham Terrace, in this instance a decision was made for the mediation to proceed at the chambers of local barristers and the rooms and facilities more than sufficed.

The gesture of chambers to provide lunch was greatly appreciated and the sandwiches both plentiful and well received by the parties, their representatives and of course the mediator.

At Brisbane Mediations we often travel to undertake mediation and are always happy to consider a request to do so.

Not only did the day provide a welcome change to our normal routine but I am pleased to report that with the help of both representatives, the parties were able to reach agreement on all issues.

As they say, in the usual parlance, a successful day was had by all.

The father's solicitor will now prepare consent orders which the representatives will jointly submit to the court for approval.

With the Court's approval almost guaranteed due to the reasonableness of the agreement reached, the parties are a long way in front in terms of legal costs and avoiding the long delays that are an everyday feature of a court system that is quite simply breaking under the load.

I look forward to the next opportunity to travel into the regions to assist parties to resolve their dispute.

Why not invite us out to your place for your next mediation.

One Barrister's Perspective on Settlement.

In recent days, while attending a function at the Family Court, I chatted with a barrister whom I knew well, about his work generally and the state of the list in the Brisbane Registry.

The barrister who enjoys a strong reputation in Family Law remarked that he hadn't done a trial in ages. " All of my matters seem to settle before trial, many of them at mediation ", he said.

When pressed further as to why this was so, the barrister volunteered that apart from the obvious issue of costs and parties not being able to afford to go to trial, it was the uncertainty of the outcome that was also a factor. Clients regularly ask me whether I can guarantee them a better outcome if they go to trial and inevitably the answer is " no I can't " he said.

The costs issue is self evident and this combined with the uncertainty of outcome, make up what lawyers and mediators refer to as the risk factor which in most cases is a strong deterrent to parties proceeding to trial.

Vale Charles Cooper

I was deeply saddened today to hear of the death of friend and colleague Charles Cooper after a long illness.

Charles was a big bloke with a big personality.

Hard working, intelligent and courageous, Charles was a fierce advocate for his clients who along with his opponents, all knew they had a fighter when they engaged him.

Charles loved a chat and always had a quick-witted (often sarcastic) comment or word of advice ready to share along with his inimitable smile or laugh.

Charles was fun to be around and when not talking about his children (of whom he was clearly very proud), talked about his cases with relish and passion.

Our thoughts and love are with Di and the family who all shared his fight to the end.

I will miss you mate !!!

Panel of Mediators

Brisbane Mediations has an extensive panel of mediators available to assist with Mediations requiring to be organised at short notice.

Let us take the worry out of your next mediation by organising all aspects in a competent and efficient manner.

Our rates are competitive and we enjoy a strong reputation for our outcomes and professionalism.

Look at our website www.brisbanemediations.com.au for more information or call Gail on 3839 7400.

Welcome news on Domestic Violence

Great to see that Malcolm Turnbull will make disturbingly high rates of violence against women his first order of business, declaring that the scourge had been overlooked for too long (SMH 24/9).

According to reports,duty lawyers will be employed at hospitals in domestic violence "hotspots"as part of a $40 million plus package fighting domestic violence.

$13.5 million will be spent over three years on "DV-alert"training for police,social workers,emergency department staff and community workers.

These are just some of the changes to be announced which would be welcomed by all concerned to halt the spread of domestic violence in the community.

Could conversation ever die out ?

At a time when jobs and even relationships can be terminated by text message and emails are increasingly used to communicate in place of speaking, one could be excused for thinking that conversation may not only be diminished as a form of communication but possibly even die out.

On reading an interesting article contemplating the loss of the spoken word, I came across this prophetic little poem of British poet Louis MacNiece penned as far back as 1957. It is worth a read in our busy day when we are constantly reminded that our " calls may be monitored for training purposes."

                                                         To Posterity

When books have all seized up like the books in graveyards.

And reading and even speaking have been replaced

By other less difficult, media, we wonder if you

Will find in flowers and fruit the same colour and taste

They held for us for whom they were framed in words.

And will your grass be green, your sky be blue.

Or will your birds be always wingless birds?

Panellist- Anna Faoagali

By providing a panel of mediators, Brisbane Mediations is able to offer a range of mediators with particular specialities.

One such mediator is Anna Faoagali who is particularly adept at assisting parties in conflict over commercial and workplace issues and is highly regarded in Workplace dispute resolution.

Anna undertook formal training at the Energy and Water Ombudsman (Victoria), where she worked for four years.

Anna's contracts for Complaint Management, Appeals and Dispute Resolution have included: The Energy and Water Ombudsman, Commonwealth Ombudsman,Anti-Discrimination Commission Queensland, Queensland Ombudsman, Relationship Centres and Interlock.

Anna has also been engaged by a number of Employee Assistance Programs to deliver Workplace Intakes, Mediations and Workshops.

Despite her penchant for Workplace dispute resolution, Anna is also a Registered Family Dispute Resolution Practitioner and able to issue S60I Certificates under The Family Law Act 1975 and has over ten years experience in Clinical Mediation and Facilitation.

Please address all enquiries to Brisbane Mediations at resolve@brisbanemediations.com.au or to our website www.brisbanemediations.com.au

Panellist Donna Cooper

One of the unique aspects of Brisbane Mediations is our ability to offer a panel of mediators with a wide range of experience and high level of competence.

One of our most experienced mediators is Donna Cooper who is well known as a Family Mediator and Trainer in Family Dispute Resolution.

Donna is a Nationally Accredited Mediator with previous experience as a Family Lawyer in private practice.

Donna currently teaches Family Dispute Resolution and Family Law in the QUT Law Faculty, publishing regularly in the Family Dispute Resolution area.

Donna is Co-author of the Family Law Text, A Harland et al, Family Law Principles ( Law Book Co; 2011 ) and regularly presents papers at Conferences in the Family Dispute area.

We are pleased to offer Donna's services as a highly respected member of the Brisbane Mediation's panel.

Please direct any enquiries to Brisbane Mediations at resolve@brisbanemediations.com.au or to our website www.brisbanemediations.com.au

Panellist--Pat Cavanagh

One of our panellists,Pat Cavanagh has been engaged by The University of Queensland to conduct seminars on Advanced Corporate and Commercial Negotiation and Mediation Strategies.

The courses are part of the Executive Education Program of the TC Beirne School of Law.

They are designed to expand the negotiation strategies and outcomes for commercial and corporate advisers.

Pat Cavanagh is one of Australia's Leading Commercial Negotiators and Mediators. He has facilitated the resolution of hundreds of commercial,property,tax,franchise,and partnership cases and has been instrumental in setting up and developing (ADR) organisations both in Australia and overseas.

We are pleased to offer Pat's services as a member of the Brisbane Mediation's  panel and are delighted that his competence and experience have been acknowledged in this manner by The University of Queensland.

Please direct any enquiries to Brisbane Mediations at resolve@brisbanemediations.com.au or to our website www.brisbanemediations.com.au.

Flexibility of Mediation

One of the many advantages of mediation is it's flexibility. In fact it can be convened anywhere and anytime and without the inevitable delays of the court process.

Earlier this week, we conducted a mediation where one of the parties attended by phone from Victoria. The same process applied with each party participating in a one hour confidential intake followed by a four hour mediation with capacity to extend.

The intake,whether by phone or in person,helps in establishing the necessary rapport and trust which are often the basis for a successful outcome.

It is not uncommon at Brisbane Mediations for one or both parties to attend by phone or Skype. While this is usually essential in International matters, it also helps reduce costs where a party is interstate or some distance from Brisbane.

In fact there is no reason why Queensland mediators can't offer the phone option to attract work from other capitals or outlying centres.

Our capable staff will be happy to respond to any enquiries at resolve@brisbanemediations.com.au. For further information see our website www.brisbanemediations.com.au

Landmark decision of Full Family Court in Fields & Smith

The much awaited decision of the Full Family Court in Fields & Smith [2015] FamCAFC 57 was handed down on 17 April 2015. https://jade.barnet.com.au/Jade.html#article=389655

In holding that there should be an equal distribution of the parties’ assets, the Court confirmed that there is no binding rule of “special contributions” and endorsed the view of the Full Court in Hoffman & Hoffman [2014] FamCAFC 92 where the Court said at paragraph 52:

“… we consider that the point being made is that there is no principle or guideline (or indeed anything else emerging from s 79), that renders the direct contribution of income or capital more important – or “special” – when compared against indirect contributions and, in particular, contributions to the home or the welfare of the family…”

At paragraph 187 of Fields & Smith the Court said:

187. In this case, the contributions of both parties over a lengthy period were substantial and significant. The wife’s contributions to the welfare of the family are in themselves significantcontributions and s 79 does not suggest that one kind of contribution should be treated as less important or valuable than another.

Commenting on the case, in the Australian of 20 April 2015, well- known family lawyer Paul Doolan noted inter alia that:

“In cases involving high-net-wealth parties who built up their assets together, the fact that one party produced the income during the relationship is not to be seen as more important than the role played by the other in making contributions to the family.”

Brisbane Mediations-Current Availability

Denise Britton and I, the principals of Brisbane Mediations are currently travelling in South America and will be away from Brisbane until late March.

Over the past week, we have attended the South West Medico Legal conference in Beunos Aires.

Buenos Aires is an interesting city and perhaps aspects are the subject of another blog. The city like the whole of Argentina is facing serious economic problems and the threat of the currency collapsing.

While we are away the office of Brisbane Mediations continues to be staffed by our able assistants, Joanne McDonald and Krystina Jones who are available to handle enquiries and accept bookings.

Joanne and Krystina can accept bookings for after our return to Brisbane or direct enquiries to experienced Mediators on our panel.

Whatever the type of dispute we have mediators to handle it.

Some of our more experienced mediators include Tom Stodulka, James White, Donna Cooper, Gary Shepherd, Sue Waterman, Fran Conway. Of course there are many others and Joanne and Krystina can recommend a mediator to suit your particular dispute.

Anyone wishing to email me directly can do so at either mike@emfl.com.au or resolve@brisbanemediations.com.au

I am happy to discuss my availability for dates in April, as of course is Denise.

We both value your enquiries and support for our business and will respond as soon as possible.

Please check our website, www.brisbanemediations.com.au

We look forward to assisting you to resolve your dispute without the cost and delay of litigation.

Mike Emerson

"The Green Prince": There are (at least) two sides to every story OR It's all about your perspective

Have you heard of the movie, "The Green Prince"?  I hadn't until friends invited us to a Saturday showing at the Schonell Theatre yesterday.


The film is a scripted documentary.  The main "characters" are Palestinian, Mosab Hassan Yousef and Israeli, Gonen.  Mosab is the eldest and most dutiful son of a senior and influential figure in the zealously anti-Israeli Hamas.  Gonen, on the other hand, is an Israeli  secret service operative in the ruthless anti-Palestinian Shin Bet, with a background including psychology.


Under the carefully manipulative influence of Gonen, Mosab is transformed.  At 17 he is angry and hell bent on avenging what he perceives to be the unjust and cruel targeting and repetitive jailing of his much loved and respected father by Israeli forces. A stint in prison, however, showed him first hand how Hamas members in prison committed greater atrocities on their own with less justification in his view than the Israelis. Over time he came to see the basis of Hamas's terror tactics in Israel as flawed and even his father as one-eyed and not amenable to reason.


Not only did  Mosab become  a highly prized informant for the Israelis by virtue of his close association with his father as his trusted advisor and assistant, but he and Gonen developed a relationship based on genuine trust and affection - to the extent that they demonstrated extreme loyalty towards each other in the face of great risk of harm or even death at the hands of zealously single-minded individuals in both Shin Bet and Hamas.


Was Mosab a selfish person who worked for the Israelis to save his own skin or did he undergo a true moral awakening in the face of the deaths of so many Israeli citizens at the hands of suicide bombings and other violent tactics orchestrated by Hamas?


How is it he was able to betray (according to his upbringing and his nationality) his father and his kinsmen?  Was it in fact betrayal or did he believe that if he could help stop the violence perpetrated by Hamas then there might be a better world for Israeli and Palestinian alike?


What about Gonen?  Did he really connect with Mosab at a human level, or was Mosab no more than a much valued prize pawn in the fight against Hamas?


Talk about 50 shades of grey: I'm thinking that in this situation 50 might be an underestimation!


Are there any similarities or learnings here for us to take into dispute resolution for separating couples, disputing workers, extended families in crisis?


Methinks there is always more than one story to hear and that there are also many ways to view each story.  When in doubt, don't judge.  Listen, listen and keep listening and potential solutions will usually emerge under the guidance of a skilled and sensitive mediator.     

Trust pays Dividends in Mediation

As a lawyer practising in the family jurisdiction over many years, I have often explained to clients that "transparency means trust" when litigating. Failure to disclose or deliberate deceitfulness is likely to impact on the other party's ability or willingness to negotiate during settlement attempts.

Trust is also vitally important in mediation. As with litigation, transparency assists parties to negotiate and reach a resolution.

Parties to mediation must also trust the process and the mediator if resolution chances are to be optimised.

The mediation intake plays a most important role in developing trust - both in the process and the mediator.  It provides an opportunity for the mediator to explain his or her independence and neutrality and the mediator's role.

Most importantly, however, through careful listening, eye contact and a genuine interest in what parties say, mediators are able to establish rapport and develop trust. This rapport and trust Is an investment by the mediator which can produce big dividends in terms of results should the going gets tough later in the mediation.  

Clearly trust in it's many facets is important to mediation success.

Separation, Divorce and Re-birth. What can Peter Greste and Reese Witherspoon's movie, "Wild", teach us?

Journalist, Peter Greste, has revealed that he is dealing with a kind of re-birth experience in the light of his release from an Egyptian jail.


He is processing mixed feelings which no doubt include immense personal relief and gratitude as well as  a version of "survivor guilt" for being free whilst his two colleagues remain incarcerated. 


Although he is not saying as much, it is probably also likely that, as an adaptable person, he had adjusted to the restrictions of life behind bars and that freedom will demand debriefing and re-adjustment so he can fully resume executive responsibility for his own life.


Peter Greste's experiences have common features with those of Cheryl Strayed as depicted in her biographical, Wild: From Lost to Found on the Pacific Crest Trail and played by Reese Witherspoon in the movie, Wild, currently in Australian cinemas.


Strayed wrote about her epic journey - essentially alone and on foot - across the PCT (the 1000 mile Pacific Crest Trail  which is closely aligned with the Sierra Nevada and Cascade mountain ranges and runs between the US border with Mexico and that with Canada through the states of California, Oregon and Washington). This was her self prescribed healing process after losing her mother prematurely and reacting with self abuse through drugs and promiscuity with the result that she also lost herself. 


Strayed dared to ask the questions: "What if I could forgive myself?" "What if all those things I did were the things that got me here?"  In walking, she was trying to find the girl her mother always believed she was when she advised her to, "Find your best self and when you do, hold onto it forever". In Strayed's words, "After I lost myself in the wilderness of my grief, I found my own way out of the woods". 


This was Cheryl Strayed's re-birthing experience.  Peter Greste is also experiencing a re-birth subsequent to 400 days in his own "wilderness".  Both experiences are powerful and positive and neither would have been possible without a prolonged period of deprivation, self-discipline and extension of personal limits.


How do you plan to re-birth after you come out of the tunnel of grief and adjustment associated with separation and divorce?

A Spirit of Compromise in Mediation. Hindsight is a wonderful thing!

A spirit of compromise is essential in achieving an outcome in mediation.

Mediation has gained popularity because courts have failed to provide inexpensive and timely outcomes for disputing parties.

Mediation can be convened quickly, is less expensive (often vastly so), and enables parties to move on with their lives without undue delay.

Success at Mediation is greatly assisted by proper disclosure and transparent dealings.  A spirit of compromise - including willingness to listen to the other party's views and acknowledgment that court outcomes are discretionary and usually encompass a range of possible outcomes- improves prospects of resolution.

Some time ago we undertook a mediation intake for a party who chose not to proceed with the mediation but rather to embark on litigation, confident in his solicitor's advice that a particular favourable outcome would be achieved.

Later, on returning to mediation on a peripheral issue, the same party expressed considerable lament that he had not continued to mediate in the first instance. After he and the other party had each spent approximately $150,000, he had been told by the same solicitor 'at the door of the court' that, "Today is the day we compromise our position to try to achieve a settlement".

Whilst the solicitor was no doubt confident in his original advice, the client would have been better served by exploring a range of possible outcomes at mediation and compromising to achieve an outcome both parties could accept. They could then have moved on emotionally earlier and the money spent on litigation would have been available to fund the more wholesome needs of themselves and their children.

Hindsight is such a wonderful thing!

There's no such thing as "A Happy Divorce". Or is there?

Separation and divorce are so often referred to in negative terms - a "failed marriage", betrayal of trust", "loss of the dream", "a broken family".

How much less often do we talk of learning from a relationship and separation experience, having another chance, the benefits of the experience to new relationships, or being freed to pursue more personal goals? It can and often does transpire that in time a relationship breakdown is viewed positively - by not just one but by both parties.

"That's all very well for some",  you might say.  "But what about the unfaithfulness, the lies, the breach of trust? What about my broken heart, the years wasted, the dreadful pain of rejection?"

Each separation experience is unique. Each separation experience is personal. Most are painful. Most trigger a grief process of variable duration and intensity and a recovery and adjustment period which is equally unpredictable in nature.
Separation,

How well separated adults recover and "move on", to use a colloquialism, is dependent on a wide range of factors: personality, the capacity to make a positive out of a negative, level of social and emotional support, and the quality and orientation of advice - to name a few.

The dismantling of an intimate relationship represents a loss and as with other grief experiences, can be likened to travelling through a tunnel. It is a process and the only way out is to go through it. It is helpful to keep a look out for that tiny glimmer of light at the end of the tunnel and continue to do whatever brings it closer. The journey is about recovery from the loss. The destination is a brighter, happier and more enlightened life experience.

Birdman - A clever portrayal of psychosis, black humour injected with fantasy, or an attempt to demonstrate the psychological fragility of actors in general?

I saw Birdman on the weekend. I'd like to see it again now that I know it was up for an award in the Comedy or Musical section at the Golden Globes.  I didn't realise it was either, although there were definitely a lot of quite funny bits (I won't spoil it for you by detailing them).


To me, a Psychologist and Mediator, the lead role of Riggan Thomson, brilliantly played by Michael Keaton, is that of a late middle aged actor feeling washed up and surrendering, at times in dramatic style, to his alter ego Birdman - a character of his from a successful series of science fiction/super hero type films.


Riggan presents as being in the grip of psychotic visual and auditory hallucinations, delusions of grandeur and paranoid ideation and demonstrates an obvious cognitive blurring of the line between reality and fantasy.


At least, he did until the last scene .....


What do others think?


Could any of the many "interesting" characters in this movie have been helped by timely mediation or therapeutic counselling?


By the way, I have just discovered that congratulations are in order for Michael Keaton for winning "Best Actor in a Comedy" at the Golden Globes.

Good Advice for Separating Parties and All of Us

@BrisMediations: Great advice from Ruth Ostrow - not only for those going through separation and divorce, but for us all! http://t.co/4Odyiq1eh4

2015 has started with a bang at Brisbane Mediations

Like the fireworks most of us observed in person or electronically at midnight on the 1st of January, 2015 has started with a bang at Brisbane Mediations.


We have taken time out to look at what we did well in 2014 and what we may be able to improve or add to our services in 2015.  We're back on deck energised and ready to listen.


Judging by the people who have already rung Krystina or come through our door for intake discussions this week, at least some problem situations have not magically disappeared over the Christmas holiday period.


This year, as always, we intend to deliver non-judgmental, supportive and skilled conflict management to our clients.   


We must of course remain neutral and not "take sides" or lecture parties about what we believe is the best way to resolve their disputes.  We do, however, challenge and assist with reality testing of desired outcomes, helping our clients to realise that just as there are at least two sides to every story, there are at least two perspectives to every dispute.  The old saying, "It takes two to tango" could be modified to, "It takes at least two to create conflict".


Whether your dispute is the result of a relationship separation, entrenched tensions between extended family members, workplace disagreements or conflict over an estate you think has been unfairly apportioned, the Brisbane Mediations team is trained and equipped to assist.


It is our role to guide people in dispute to a resolution they can live with and that allows them to move on with their lives - if possible, without harbouring resentment. The team at Brisbane Mediations derive pleasure from seeing our clients relieved of the burden of emotionally draining and often financially expensive disputes. We've all seen enough of those in the Court system.


Life is short.  Let's all make the most of it.  At Brisbane Mediations we like to say, Things turn out best for the people who make the best out of the way things turn out.  Just because you've had bad luck with someone significant in your world, you don't have to live the rest of your life with conflict, stress and regret.  We aim to help our clients chalk it up to experience, let go of the bitterness and move on.


We know that the people who come to see us are usually hurting and feeling betrayed. Those feelings take time to heal, but we would love to start you off in a more positive direction with an agreement that, no matter how hard won,  all parties can at least tolerate. Over time, the conflict can become a blip on the horizon.


Come in and see us and make 2015 your best year yet!