“FROM JUDGE TO MEDIATOR – NOTICE THE DIFFERENCE?”

From the Family Law News; Newsletter of the Family Law Committee of the Law Society of South Australia Volume 7, March 2014

The Hon Rodney K Burr AM,
Retired Justice, Family Court of Australia
Nationally Accredited Mediator

“From Judge to Mediator - notice the difference?”
Absolutely!
They are two very different roles although significant parts of the old job have been transportable to the new role. The Family Law Committee thought it might be at best useful, or at worst interesting, if I shared a few thoughts with you.

So, what about the new role is similar to the old?

• 
  Preparation - by myself but importantly, by the lawyers;
• 
  Identification and understanding of the issues;
• 
  Flexibility - be prepared for the unexpected and be receptive to multiple alternatives;
• 
  Reality testing - challenge the untenable or unsupportable;
• 
  Timing is everything - know when is the right time to reality test or challenge;
• 
  Knowledge - know the law and understand the options;
• 
  Patience - be aware of and accommodating of the need for some parties to vent and to journey down
• irrelevant pathways at times;
• 
  Anticipation - try and be "ahead of the game " in order to avoid any nasty surprises;
• 
  Experience - cannot be purchased I'm afraid and can only ever really be a product of serving time. Someone once described experience as being that awareness you develop over time which enables you to recognise a mistake the next time you repeat it!
• 
  Insight - invaluable and sourced from documents filed and expert reports;
• 
  Respect - every litigant is entitled to be afforded it until they prove otherwise;
• 
  Safety issues - be alert for the evil of intimidation and violence and any power imbalance;
• 
  Rapport - important for a Judge or Mediator to gain the confidence of the lawyers and the parties at an early stage;
• 
  Authority - it is essential that the parties understand who is controlling the process;
• 
  Confidentiality - absolutely essential in both roles;
• 
  Impartiality - there will be zero prospect of a result or attaining in the parties and their lawyers a sense of fairness if a bias or perception of bias develops;
• 
  Settlement processes and tools - many Court events were designed to endeavour to achieve resolution without trial - Judges participate in Judicial Settlement Conferences and Less Adversarial proceedings.

In what ways then are the two roles different?

• 
  No judgments - thank goodness those years are behind me! No more late nights and spoiled weekends and holidays ploughing through mountains of material to produce a lengthy judgment that very few people read and only a handful of people cared about;
• 
  No final say as to the outcome - the parties (guided though they are by the Mediator and their legal representatives) develop and own the result;
• 
  No bossing people around - no “ok sunshine this is how it's going to be!”;
• 
  No legal advice or opinions offered - that is why they have lawyers but that is not to say that I might not deem it appropriate to give the parties the benefit of my 14 years experience on the Bench as the day wears on!
• 
  Back into the cauldron - as a Judge you are somewhat shielded and aloof from the passion and emotion of the parties - not so as a Mediator;
• 
  Support - pretty much everything is laid on for you as a Judge so that you can devote yourself fully to the job - as a Mediator it is back to all the practicalities which plague the sole practitioner;
• 
  Statutory immunity - a thing of the past now - care is to be taken in the drafting of the Mediation
• Agreement;
• 
  Training and currency - laid on for a Judge but very much the personal domain and responsibility of the Mediator;
• 
  Formality and formal dress - oh thank you, thank you, thank you! Every day is now neat casual day - how good is that?
• 
  No Appeal Court - although your peers and those instructing you will stand in judgment of your
• performance and behaviour as a Mediator;
• 
  No respect afforded you simply by dint of holding judicial office - now it needs to be earned;
• 
  Competition - there was certainly no need to “flog your wares” as a Judge - the work came anyway - now you need to establish a point of difference as against the many highly competent and experienced Mediators on offer;
• 
  Personal engagement - was rarely possible as a judge and if it was, it was rarely pleasant with the self represented litigant - as a Mediator it is a necessary part of the process and for my part, most enjoyable. A pre mediation conference is a valuable tool in gaining an insight into the parties and what motivates them and in gaining their trust. It also gives to the parties an opportunity to get it all “off their chest” including all the irrelevancies that would otherwise likely hamper the prospects of resolution at the mediation proper.
• 
  Broader possibilities - whilst a very broad discretion rests in a Judge, many more options for resolution can emerge in a mediation environment - the possibility of engaging third party support and assistance is regularly alive;
• 
  Other professionals - at a point leading up to the mediation it is possible to identify experts who might be available in person or by telephone to assist in achieving a resolution e.g. an equity lawyer, a trusted accountant, a tax lawyer or psychologist (in several very large mediations I have conducted in Perth they have proved to be the difference).

How important is the role of the lawyers?
Whilst it is not an entirely inflexible position on my part, I am reluctant to accept instructions as a Mediator unless all parties are legally represented so in my case the role of the lawyers is critical. It is not my role to cut across all of the hard work undertaken by the lawyers leading up to my engagement or jeopardise the trusting professional relationship they have established. The lawyers will always have a more intimate knowledge of their client's case and their client's needs than will I. That though also imposes additional responsibilities upon the lawyers to
present the matter for mediation in the best possible shape, an exercise which is both the same and different from preparing a matter for trial.

So what are the essentials?

1. 
   Prepare thoroughly - in a property matter make every effort to agree as near as possible the components and value of the asset pool;
2. 
   Provide what the Mediator asks - in my case a brief document in the nature of a Case Outline not a giant brief;
3. 
   Prepare yourself and the client for the mediation - develop strategies/alternatives;
4. 
   Impress upon the client the need for flexibility and an open mind in the mediation process;
5. 
   Dissuade the client from the notion that the mediation is to be a vehicle to impose their point of view and desired outcome upon the other party;
6. 
   Ensure they understand the importance of being respectful to all engaged in the mediation;
7. 
   Identify to the Mediator any matters considered "non negotiables" (although they rarely are) by the client;
8. 
   Leave your antagonistic, aggressive, adversarial posture at the office - your client will be far better served by you engaging the spirit of mediation without, of course, abandoning your obligation to do the best you can by your client;
9. 
   Pay the Mediator's fee promptly!!!!!

The above points cannot hope to be exhaustive and many another Mediator may quibble with my priorities. They cannot be anything more than the observations of one person. However, I hope some of these matters assembled in the course of nearly 45 years in the Law, 14 years as a Judge, training courses conducted by very able people, National Accreditation as a Mediator, a Graduate Diploma in Family Dispute Resolution and 18 months as a Mediator both here and interstate, will prove to be of some help, or at least interest, to the reader.

As a post script, I must say I love being back in closer contact with the profession.