Have you ever wondered the difference between legal proceedings and using a mediator? Well in this podcast Tanya interviews Alison Shaw. Alison was a family lawyer who ran her own business and had a light bulb moment after completing a mediation course. Alison realized that their was a better way to help families going through divorce and started Shaw Dispute Resolution. Alison believes in mediation not litigation and says that her legal skills have provided an insight that allows her to show compassion and help families through the process in a calm and safe environment.
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Hello everyone and welcome back to the Divorce Angel Podcast. This is episode 36. In this episode, I’m actually interviewing Allison Shaw. Allison is the founder of Shaw Dispute Resolutions. Allison used to be a family lawyer and then moved into mediation. Over the next two weeks, I’ve broken my interview down to two podcasts simply because the information in here is– There’s so much, to be honest and I don’t want you to miss anything. The first episode, this one that we’re about to listen to now, is all around what is mediation and the best way to get an outcome from mediation. Next week, I’m going to break it down even further into the questions you should be asking and what you should be looking for in a really good mediator. I hope you enjoy this podcast and I look forward to talking to you again next week.
Tanya: Well, hello everyone and welcome back to the Divorce Angel Podcast. Today, I’m here with the amazing Allison Shaw and she owns Shaw Dispute Resolutions. Is that right, Allison?
Allison: That’s right. Sure
Tanya: So great to have you here. So we’ve already previously had a bit of a conversation and I love so much what you stand for in your business. It’s just amazing. Can you give us an idea of your history in the family law realm?
Allison: So I’ve been a lawyer for about 25 years and the last 15 of those has been specializing in family law. In 2009, with a couple of close colleagues, we established a boutique family law firm called Barnes Brinsley Shaw in Adelaide now known as BBS lawyers. In about 2013, I retired from that business to set up Shaw Dispute Resolution it.
It was in 2011 that I’d had my lightbulb moment in mediation and discovered a completely new way for people to resolve their family law disputes without courts. So after BBS, I was able to embark upon a new direction and offering mediation to people around Australia. It was at that time that I started looking around and realized that there were about three and a half thousand nationally accredited mediators around the country and all of them were sticking up their hand saying, “Pick me, pick me. I can be a good mediator. I can help you resolve your dispute.” but because they were from home offices, people didn’t know how to find a mediator and a good one at that. So I decided to put out an expression of interest around the country to find like-minded mediators that also had a legal background in family law that we’re able to offer mediation services national. So now we have 30 of us around the country doing just that.
Tanya: 30. That’s amazing. So you spoke about a lightbulb moment when you are actually in your law practice. What was that?
Allison: That was when I did the national accreditation in mediation through Bond University. It is a 38-hour course and that anyone can undertake. But what transformed my view of dispute resolution was that I could engage in a different language and empower people to take responsibility for their own dispute and to take control of the outcomes which was so new to me and so different having practiced as a family lawyer where people came to see me for legal advice on what family law actually was and how it would apply to their situation but then instructing me to go to court on their behalf to use the litigation process through the Federal Circuit Court or through the family court to ask a judge to decide on the outcome for the client. So that’s why it was a lightbulb moment.
Tanya: So you’re saying the use of language and how you talk to someone was the turning point in how someone can get an outcome for their situation.
Allison: Yes, because I learnt that mediation is a completely different process than litigation. Litigation and the court is like hopping on a conveyor belt where the client hops on the conveyor belt with their lawyer, but they don’t have any control of the direction of the conveyor belt, the length of the conveyor belt, or the speed of the conveyor belt. At the other end of the conveyor belt is a perfectly good judge who will make a very good decision. However, it’s the process of getting to that trial where you’re asking for the judge to make that decision that is long and often expensive.
Mediation is completely different. As the mediator, I do not decide what topics need to be resolved nor my decision my make it so I have no control over the [00:05:00] outcome of the decisions that are made by the clients themselves. The clients have the decision-making. They are the ones that decide what needs to be sorted out in terms of property settlement or arrangements for the children or child support or spousal maintenance, and they are the ones that decide what is acceptable to them and their family. So the onus is back on them to make those decisions not on me, as the practitioner, to make those decisions.
Tanya: So say I’m a client and I’m coming to you and I say to you– Or my ex-husband and I were sitting in front of you, what happens if someone is bullying the other one in a mediation? So have you got the ability to say, “No. Look, that’s not right.” or you just let the two of them together come to an agreement?
Allison: No, not at all. My [00:06:00] role as the mediator is to level that playing field. So there’s a lot of preparation that is done with each person before we all come together in the joint session of mediation. So in family law disputes, it’s really important that we have an initial intake session with both parties separately to screen for violence, drug and alcohol problems, mental health problems, and some of those questions that I have to ask each client are very personal questions and they’re be confronting for people but I reassure them that it is to make sure that everyone’s well-being and safety is protected through the mediation process, and it’s to understand what they’ve been living with and what the [00:07:00] concerns are that they have so that I can help them have a safe environment to be able to have honest and robust conversations between themselves.
We also then have another session before we get to the joint session where we can go into much more detail about what they would like to see resolved and how they see it being resolved and what options they have already considered in a way forward for them and their family. So those initial conversations are really important to getting to know the clients, getting to understand what’s important for them so that in the joint session, one person doesn’t dominate and everybody gets the opportunity to be heard and to have their say in a very safe and civilized way. [00:08:00]
Tanya: So is mediation for everyone?
Allison: Mediation is, in family law disputes, more often than not a way forward, it just depends whether everybody is ready for mediation at the same time. So in my experience, there is one party could initiate the mediation as a dispute resolution way forward. So then often, I’ll speak with the other party who may not have thought about mediation, may be suspicious because the other party has already suggested it and contacted us, might feel a little bit unsure about what the process is so we will have a chat with them about mediation and invite them to participate in [00:09:00] mediation.
At that point in time, they may not be ready for mediation in which case we’ll go back to the person that’s initiated it and say, “Look, it isn’t off the cards. It’s not necessarily inappropriate. It’s just that the other party is not ready yet at this point in time. It doesn’t mean in six months later or three months’ time, they’re not ready for mediation, but right at this point in time, they’re not ready for mediation.”
Tanya: Sorry. Because I was going to say in a lot of cases, sometimes you’ve got a– In what I’ve seen, you’ve got to actually force someone at a particular stage to get organized or otherwise, they won’t ever face what’s going on.
Allison: Look, everybody is different. In my experience, most people do want to move past that very difficult time in their life of resolving arrangements for the children and property settlement but [00:10:00] sometimes they just don’t know what to do. They’re almost paralyzed with indecision.
Allison: The recall from us is sometimes a bit of a wake-up call and we just give them an option of a different way forward that leaves them in control of the situation. If we do engage with them and we explain how mediation works and we explain that we are independent, that we don’t represent either party and that we are neutral, and that we’re not a decision-maker. Lots of parties see this as a genuine opportunity to resolve matters and will then take that opportunity up.
Tanya: So what’s the difference between a private mediator and a court-appointed mediation?
Allison: Well, a private mediator is [00:11:00] paid privately by the parties and usually parties share the cost of that and if it’s half a day could be $3,000, each party pays $1,500 each plus GST and that covers everything. If it’s a court-appointed mediation, it might be that at a directions hearing or at a call over at the Federal Circuit Court or the family court, the judge might offer to the representatives of the parties to consider mediation and to put on hold the litigation or to at least have the opportunity to engage in mediation while they’re waiting for their case to progress along that conveyor belt to get to a trial. If it’s offered by the court during the call over, then the party still get the opportunity [00:12:00] to choose who the mediator is and there’s often a list available at the court, in the courtroom on that day and sometimes the judge will allow you to have a short break. In an adjournment of the hearing, they’ll stand the matter down so that the representatives can decide on the mediator. That is still shared in the costs between the parties equally and they get to choose who their mediator is. So it’s a bit like a private mediation, but there’s often the encouragement by the judge to engage in that process at that point in time.
There is also a mediation or family dispute resolution available in each of the states where one party is represented by legal aid or the Legal Services Commission.[00:13:00] In that situation, there’s an order made to go to family dispute resolution at the Legal Services Commission and for that, there isn’t the opportunity to choose the mediator and it’s a sort of a truncated mediation process and it’s not necessarily using the facilitative method of mediation that is offered by private mediators.
Tanya: If we just stop there though, so can I– Am I getting this right that at some uncertain stage, even if we go through the court process, we might need a mediator. So why would we go there when we could start right there at the start and get rid of all of the animosity and the cost of going through the court system.
Allison: Well, I think it comes down to confidence or knowing about mediation in the first place and I don’t think a [00:14:00] lot of people really understand what mediation is so they don’t know where to look for a mediator and they don’t know how to engage in mediation. The other thing is that they don’t have the confidence in the mediation process and that might be that even their lawyers aren’t as comfortable with mediation as they are with litigation. That’s because the status quo has been, for so long, that if you go to see a lawyer, they will take your instructions and they will try to negotiate a settlement between the solicitor, but if that doesn’t work, then the next thought is to issue proceedings in the court rather than to mediate. That’s just because of the history of lawyers and the way that they have been trained and the way that they know how to [00:15:00] negotiate.
Sometimes, proceedings are issued by lawyers because there isn’t any engagement by the other side. So by issuing those proceedings, it does make everyone get on that conveyor belt and start cooperating, but it doesn’t mean that they can’t then, in parallel, try mediation as well as the litigation process.
Tanya: So what makes a good mediator?
Allison: Well choosing the right mediator is really important, There are a number of questions that I recommend to people to ask mediators when they’re actually looking to engage a mediator, and I actually have that checklist and I would be happy to make that available to all of your clients and listeners. That [00:16:00] checklist really includes about– Asking the mediator about their style of mediation. That is how they mediate. Do they do intake sessions and screening sessions? Do they have initial consultations? Are they, before the joint session or are they on the same day as the joint session of mediation? Is the mediator nationally accredited under the national mediator accreditation standards, or are they a retired judge or do they use a different form of mediation like transformative mediation or narrative mediation. Because they’re all quite legitimate styles, but it’s really important to know what process you’re about to embark upon to try and resolve your dispute.
You need to have confidence [00:17:00] in the process of that mediation because it’s not so much the person or the mediator that’s going to resolve the dispute, it’s the process that’s going to resolve the dispute. It’s the mediation process that’s the hero in helping people to move forward and pass their family or problems.
Tanya: So can you explain to me what’s the difference between transformative and narrative?
Allison: Okay. The narrative mediation style is storytelling. That’s the easiest way to describe it. The mediator engages with both parties in a way that the parties describe to each other and tell each other the story of where they’re at and how they’ve got to be where they’re at and unpicking the past. It’s a very holistic and therapeutic [00:18:00] form of mediation, but it also does usually take a bit longer because the exploration of the past is more central to moving forward.
Transformative mediation is a process where the mediator actually even says less in the mediation, but just provides a very safe and calm environment with minimal engagement, minimal asking a questions, and certainly no suggestions or opinions being offered, and to ask their own questions of each other, and it doesn’t have the same agenda focus that the facilitative method of mediation it involves.
Tanya: In [00:19:00] your mind, which one of those two processes actually works better for an outcome?
Allison: In my view, the facilitative method of mediation or model of mediation is very future focused and very outcome-focused.
Tanya: Which is the Narrative one.
Allison: No, that’s the facilitative method.
Tanya: So that’s another one again, then.
Allison: Yeah, so there are three forms of mediation. Under the National Mediator Accreditation Standards, the facilitative model of mediation is probably the most common around Australia and that is really outcome-focused. However, in my view, a really good mediator will incorporate some of the skills from the narrative mediation style and the transformative mediation style into the facility of model of mediation to really use the best [00:20:00] of all models, but with a future focus and an outcome focus for the parties.
Tanya: Wow. This has been amazing. I did not realize that there were so many different types.
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