I love mediation. Really love it. Not just because I am massively conflict averse, but because, unlike it’s angry litigious cousin ‘Court Proceedings’ (look, I know he can be useful sometimes, but he is generally a jerk), mediation gets to the bottom of things.
As lawyers, we really enjoy facts. Good old objective, evidenced, ‘black and white’ facts. Facts that can’t be disputed and can help us to determine who is wrong or right, what has happened in the past, and what should rightly happen in the future.
But parenting issues are different, because, unlike many other areas of law, including property settlement, parenting matters are determined on the best interests of the children, and that isn’t something that can be decided on facts.
Whilst facts can definitely help to build a picture of what is going on around the family and the kids, the best interests of any human being are not static, and need to be considered in light of the ‘facts’ as well as the thoughts, feelings and future goals and expectations of that person.
Children included. And, luckily for us family lawyers and any poor parent dealing with managing kids’ arrangements after separation, no two people are alike, and those other factors are so highly variable that there is no one answer, or ‘one size fits all’ approach that can be taken and applied to resolving issues. Especially when parents can’t agree on the big decisions.
So circling back to the weird tangent I started on. I love mediation. And that is because it lets people talk. Openly, honestly, and from a place of ‘why’, rather than reciting off an affidavit or similar other list of gripes.
Even for parents who are still in a relationship together, agreeing on big decisions like schooling, religion and medical treatment, can be tricky. The difference is, in a positive co-parenting relationship, whether the parents are in a relationship or not, communication is high and the ‘why’ is often readily shared and more easily considered and dealt with.
“I don’t want our kids going to a Christian college.”
“But it’s the best school in our area.”
“Well I don’t agree. They aren’t going there.”
“You never agree, you’re just doing this to spite me…” etc.
You know the story. You know the conversation! You have probably had it. We all have.
In situations where the communication is good, and open, the question of ‘why’ would have been asked straight away. And maybe it would have been met with a roadblock, and maybe it could have been asked again.
“Because I was raised in a Christian household and was taught beliefs that I don’t want our children to have because they affected me detrimentally.”
And then the real conversation is opened up. The ‘why’ behind the issue.
When we fail to deal with the ‘why’ in any circumstance, at home, at work, anywhere, any outcome or resolution isn’t necessarily going to work in the long term.
Another common BIG decision that causes conflict will be around location, or, indeed, relocation. There is a substantial difference between someone wanting to move somewhere ‘because they feel like it’ versus ‘because I can’t afford to pay rent where we are anymore and this is the closest option I can afford’.
There is also a big difference between ‘so I can be closer to my parents’ versus ‘because I need to be closer to mum as she is really unwell and I am providing care for her, and the kids are wanting to spend as much time with her while they still can’. Factually, they are the same. It is a proposed move. The ‘why’, however, is what makes the difference as to the interests of the children, as well as the position of the other parent.
The question is, however, what about when you don’t agree?
What are your options?
The Family Law Act 1975 (Cth) provides for a presumption of equal shared parental responsibility. This means that, without reason otherwise, any orders the court make around parenting will generally include shared parental responsibility which includes making big decisions. For those of you without parenting orders, the same essentially applies.
In essence, regardless of whether your issues are big or small, you will inevitably revert back to the same options as in any other parenting matter. Mediation, negotiation or litigation.
The courts expect that you will mediate first. I advocate for this, not just because it is expected that you ‘try and fix things yourself first’, but because I think, with the right mediator, you can get really good outcomes. In many cases, with the right mediator, you can resolve some if not all of the concerns.
But I practice holistically. And that means, I will do anything, anything, to keep you out of the courts. That is why I want to offer some other ideas that might work for you and your family to overcome these types of disputes:
- Family Counselling: this is the therapeutic way of drawing out the ‘why’ in a setting that is supported by a trained and competent professional. They will know how to open you out, and know how to keep you safe. Unlike normal mediation, this isn’t about making an agreement, but looking at the underlying issues and working towards overcoming these first. If there is a lot of trauma from your relationship, or ongoing high conflict, this is well worth the investment.
- Divorce/Separation Coaching: you know how your PE teacher used to put a rocket up your arse if you were at the back of the pack in a warm up run? Or your netball coach made you run the drill extra times because you weren’t putting in the effort with the team? Did your soccer captain scream at you until you cried because you realised that maybe, just maybe, you weren’t actually trying hard enough in that match? Well, that soccer captain grew up and got a law degree (or something similar) and now they want to get the very best out of you in this setting. Sound weird? It’s not. It’s freaking awesome. You and the other parent will be getting direction and advice together and separately, and guided in a proactive and practical way to ‘get shit done’.
- Parenting Coordination: this is the premium service for parenting matters, taking holistic to the next level. It is about preparing you, guiding you, getting you through mediation, and then case managing your arrangements moving forward to ensure they actually work, and nipping issues in the bud nice and early.
What I ask, is that you try everything you can before heading down the legal path. Neither you, or your children, want a court, who doesn’t know you from a bar of soap, making big decisions on your behalf just because you couldn’t work through conflict like the brilliant kick arse parents you know you can be. Or already are, I hope.
Still not sure where to go? Get in touch and see if I can be of any help.