How & Why Mediation Works with Farley Tolpen

In this episode of the Australian Family & Fertility Law Podcast, Accredited Family Law Specialist, Bruce Provan talks with Mediator, Farley Tolpen on why and how mediation works in resolving family law disputes.

Transcript

Intro: You’re listening to the Australian Family and Fertility Law Podcast. Here’s your host, Bruce Provan.

Bruce Provan: Hi. My name is Bruce Provan. My guest today is Farley Tolpen. Welcome, Farley.

Farley Tolpen: Good afternoon, Bruce. How are you?

BP: Good. Farley’s an accredited mediator. He’s a family dispute resolution practitioner and he’s an accredited arbitrator. Farley, tell us a bit about yourself and how you got into mediation.

FT: Well, Bruce, I’ve been a mediator for over 20 years, and I’ve been a lawyer for over 37 years. And when I first began practising, and after a couple of years, I started my own practice. A large part of it was family law. And I like to litigate and try family law matters. And this is in that little Island East of here in a little town called San Francisco. And one day in the mid-90s, I’m trying another case and one be about a six or seven-day case.

And right in the middle of it, the judge just summarily blasted my client and rule for the other party. We didn’t even finish with the presentation of evidence. And we walked out of the courtroom and the client said, “What just happened?” And I said, I don’t know, but it’s not right. She said, what did you do wrong? And I said, do you know? I told her I didn’t know, but I was tired of this. And litigation is just a crapshoot. It just happened to be the wrong place at the wrong time for my client that day.

So there was this model mediation model that was just coming up in California, and I decided not to litigate anymore. Family well, but to mediate them. So I started taking a course and I started mediating. And I really took into mediating lots of family law, but other things. And it really picked up in the mid-2000.

BP: So you really enjoy doing mediation.

FT: I do. It’s just a great feeling, as you know, Bruce, when you can have a matter that’s been acrimonious or been litigated or just end, there’s a lot of emotion or time or money involved and you can get it resolved and done and people sign off. It’s just a great feeling. I love doing it.

BP: How many years have you been doing mediations in Australia?

FT: I’ve been mediating now twelve years in Australia, mostly family law, but some other matters. And I do probably one to four mediations a week. So I estimate in those twelve years, Bruce, I’ve probably done over 4000 mediations.

BP: Wow. And fall it would have been asked this many times before, but what’s one of the advantages of mediation?

FT: One of the advantages, the biggest advantage is it’s an impartial process that gives people the opportunity for them to control their destiny. When I mean by that, it allows them to make the decisions that they can live with. Because if it doesn’t resolve, then it goes to a third party who doesn’t know either people and just going by his judge is just going by his or her perceptions and experiences is going to make a decision at somebody else. Not going to lie, usually the advantage of it, not only that, that’s the big one to me, but it can be done rather quickly.

And it can be done much less expensively than litigation, much less time to litigate a matter now and get it to trial. You’re looking at almost two years for mediation. You can be the mediation, depending what it is as one to three or four months with the cost about a 10th of what it would cost to go to trial. Other advantages are it just can’t and the big one, Besides making your own decisions, it can. You can reach resolution at a very early stage and move on with your life.

BP: And that probably explains why so many matters do resolve at mediation.

FT: Yeah, I think so. My experience is, you know, and I mediated with you before, Bruce, that when you sit down and you can put your heads together and you can work with clients to talk through issues and get them to focus on whatever the issues are, whether it’s property and a commercial reality or parenting, instead of the motion that he or she or they did this to me.

Helps get resolution. And that’s what’s great.

BP: And, of course, the vast majority of matters to go to one of the family law courts, there will be a mediation either prior to a property matter or during the course of a property matter.

FT: True, true. And now they’re stepping up on that now. The problem is, is for both matters, it takes generally my understanding, and I’m not familiar with this new system they set up with the property. But for parenting, unless there’s an emergency or urgent matter, takes three to four months to get to the initial hearing is my understanding. And then they talk about either conciliation or sending it to mediation.

BP: That’s it?

FT: Yeah. Property probably is this similar, but I’m not sure how they’re working that now.

BP: Yeah. Well, most matters where preceding a commence for property settlement, almost invariably the matter will be referred to mediation.

FT: That’s my experience, because I’m getting a lot of them as they go through with the Registrar and he kicks it out, go to mediation, come back and whatever they say, one month, two months, three months if there has to be disclosure or what have you. But they’re really trying to get everything out to mediation and then later arbitration, if possible.

BP: So how it tells us about the different types of mediation?

FT: Well, the main kind of mediation is what’s called the facilitated model. That is where I, as a mediator, facilitate a conversation between two parties. For example, I might go to you, Bruce, if you’re a party. And did you hear James say? Abc, I did. But what do you think? It gives each of the parties an opportunity to to explain why certain issues which are German to one or both the parties are an issue. Talk about it, make as much piece with it as they can, and then move on to how they’re going to resolve it.

That’s the main model. There’s also other models, and I’ve used other models. There’s a model called therapeutic mediation. Okay. And a therapeutic mediation is where it’s more I don’t want to use the word emotional, but it’s more sent to assisting the parties to work out their issues and what they’re based on and help them start to really move forward and concentrate on healing. For all the parties where Facilitative will work on healing, the therapeutic model is to help the party start to heal. So it’s really focusing and digging through the emotions and slowing it down, discussing matters, working through them.

That in my experience, in that mode, Bruce, I use that I use it as a technique in the facilitative mediation model. For example, I had a mediation two weeks ago where the woman could not discuss the children because she wanted to know why he had left her and moved in with this other woman. And she was devastated. She couldn’t move forward. And he was like, I’m out of here. I don’t want to talk about this. But then he understood that if he didn’t talk about that, he wasn’t going to see children because she was angry and sad and an emotional mess if she has a support person.

So we used it as a therapeutic technique where we got them to talk about what had happened and why it had happened in their relationship. And, you know, she didn’t like it and she was upset, but she understood and then could move forward to start to talk about the children. The other kind of mediation I call directive mediation, what that is, and it’s almost like a conciliation. But what that is, Bruce, is that when if I’m doing a mediation, I can be more directive to people saying, do you really think that’s right?

You know, see, my experiences, this is a range of what a court would do and to get people to focus more on and move forward. So both parties have to be in the frame of mind that they would allow me to interject not my opinion, but my experience of what a court would do or what a range is if it’s for children and what’s best, you know, developmentally for children. And so that doesn’t happen very often. Sometimes I can do it with one party in a private session, but not in a joint session.

So to me, those are the main models. In my experience, you get other models when you’re doing property where this is the property is it almost becomes a settlement conference. It blurs when you start talking about money and you start going back and forth so it can look similar to a sentiment conference, where then my role is more working with both parties, usually separately, how to what needs to be done to get it resolved.

BP: You’re welcome, of course, with parenting that it says a different type of mediation, call family dispute resolution. Can you tell us a bit about that?

FT: Yeah, that’s what I do. I am a family dispute resolution practitioner. So that’s a process. So in that mediation process that there’s various steps. The first steps is once the parties have agreed to mediate, you set up a separate telephone intake with them, in which I explain the mediation process. I take a history and talk about the issues, and I do the same with the other party. And this is particularly important when you have children, because then I know I can figure out usually what the elephant of the room is, what’s driving this, what’s going on?

What is, you know, what are the issues and where are they? And then I also get to learn how ideal certain people, what kind of people I have, whether they’re very controlling, they’re very angry, they’re very sad. They’re very frustrating. Whatever it is, I can start to get a picture. So I know how to work with people to assist them to discuss the children in resolution. And then when you go to mediation, you know, it’s an controlled process that gives the parties an opportunity to address why things are an issue, make peace with that.

And then how are you going to resolve what’s it going to look like? How is Johnny and Jane going to spend time with each of you? What is developmentally appropriate and so on. So that’s all part of the family dispute resolution process. And usually it’s the facilitative model with other of those models sort of get it in.

BP: So far in there must be cases where mediation is not suitable. Can you tell us about those?

FT: Oh, yes. So some of those Bruce would be like, if they’re severe domestic violence, to the point that, you know, and it’s usually the female that suffered that she cannot handle. What even if you’re in separate rooms or separate conversations dealing with the other party because of the history of domestic violence, there could be mental health issues. Somebody just does not have the capacity. There could be issues where somebody’s just going to be so positional that it’d just be a waste of time to go to mediation, waste of time and money.

I could there could be my experience, though. Bruce is probably nine out of ten. More than nine out of ten, probably 19 out of 20 that I received calls on could or should go to mediation. But there are ones that should not go to mediation. There shouldn’t be a bar, particularly where you have domestic violence or you have mental health issues, or you have, you know, horrendous behaviour. You have where one is taken, the children and hitting them, or they’re all other kinds. Exceptions. Where should not go to mediation should mediately go to court?

BP: Unfortunately, those sorts of cases are very much the exception.

FT: Yes, my experience, they are in the exception because in my experience, is you will get domestic violence because people are separating one’s angry and a no one pushes yellow, screams, hit punches, whatever it is, and they get out of control. Police are called DVS taken. You can still get them to mediation, and they can be in a joint session or a separate session. But what happens in the mediation process is that in this family dispute resolution process, if you can get them to start talking to each other about the children putting aside their issues, then it’s the start of the healing process for them to start working as co parents in a business relationship.

It’s a wonderful model.

BP: So, Farley, tell me, is it possible to have a mediation too early.

FT: In the property contact? Yes. Because as you know, in the property context, Bruce, you have to each party has to disclose certain documents. The other party, like your last three years, taxes, your last six months based subs your last year bank account statements, copy of the mortgage, copy of your super financial records for a business. And that can take time. So it’s not good if you go to mediation in a property matter and that disclosure hasn’t been completed. So that’s one thing that has to be done prior to going to mediation for properties for children.

Sometimes I get calls from people that have been just separated a week or two, and one or both of them are just an emotional mess. So it may be that there needs just to be, you know, one of them, one or both, maybe just need to get a little counselling or just take a little time depending on what the issues are about the children. So in my experience, it’s more so for property, but parenting can be depending on it can be too early depending on the situation.

BP: Thanks, Farley. I tell me, why should people obtained legal advice before attending mediation?

FT: That’s a great question. And I get this question. Sometimes when I’m dealing with parties that don’t have lawyers, I tell them this way, Pres knowledge is power. Okay, you don’t know what you don’t know. Okay, so I tell them if you could. I can’t give you legal advice because I’m a mediator. I’m an impartial third party. I can talk to you about my experience and a range, but I can’t tell you what you should or shouldn’t expect. That’s where you go to a lawyer, it’s absolutely imperative that people get legal advice because you just have to know your rights, his or her rights, the child’s right.

If you don’t know that, then you’re making you’re just shooting from your hip what you think they’re based on. You’re emotional about it because of the breakup and he or she did this, that or the other it’s. I insist that parties get legal advice prior to coming to mediation, even if it’s free legal advice. A lot of times they can go to community legal centres or women’s legal service. There are other agencies. There are some lawyers that will give advice. You give a free half-hour accessory.

BP: Sure. And say doesn’t assist to have lawyers present at mediation.

FT: Ok, let’s break it down into two parts. Let’s talk about parity and let’s talk about property in parenting, particularly because there’s usually a high emotional issues or there’s just a lot going on. A lawyer on each side will be able to assist the mediator. Say it’s me in resolving the matter, and I’ll tell you why. The reason is is that as a lawyer, the lawyer’s first obligation is to the court and the children will they advocate for their client. They have to do what’s in the best interest of the children.

Good lawyers like you and Stephen will be able to say to your client, Look, I don’t know my experience. And my recommendation to you is that your off base is an example or my recommendation to you as you’re close, but not quite. A good lawyer will be able to assist the mediator in helping the parties achieve resolution. I find that if I have two good lawyers on one on each side, my job is so much easier because if there’s self reps, I have to be very, very careful, because even though I’m legally traded, I cannot give advice.

So my experience, particularly with parenting lawyers can help. Now, they can also hinder, too. I’ve had that, but that doesn’t happen very often. Thank goodness. In property, it’s the same thing. The lawyer will be able to explain to the client whatever we’re talking about, whether it’s the pool or contributions or percentage, how we’re going to divide it, talk about ranges. I would be able to talk to the lawyer about my experience being a Ranger to X Y, and the lawyer would be able to say to your client, I agree with that or I suggest this.

And so lawyers really can help. That’s why I like working with you and Stephen, particularly because I’ve worked with you both before and mediation and you’re both good and in knowledgeable and get it that. How do we get this resolved? As fair as possible, but within the parameters of what the system allows.

BP: Sure. Farley, tell me what happens if people don’t agree at mediation, that small percentage that don’t agree.

FT: Okay, so what happens is if they do not agree. I’ll give you an example. We had one the other day where he wanted to care. She is the full care, full time with the children with him. She said no. And so we worked out some temporary arrangements, interim arrangements. We called it until they got to court, which would be three or four months. So if that’s going to happen, that’s one of the things we could talk about instead of leaving it that they have no agreement about anything, and then they have to wait three or four months because then the children suffer because they’re not seeing one or the other parent.

Of course hopefully, though, from the mediation process. Sometimes what happens is there’s like, you can have buyer’s remorse, as they say. But you also can have, like people say, sit within the day and go, okay, I’m going to do it this way. I don’t want to go to court. Let’s do it this way. A prime example I’ll give you, Bruce, is I did a mediation late last year where they hated each other and she wanted the children to go to private school, the child to go to private school and was becoming a primary year.

And they’d not already agreed that that was going to happen. But he wanted the child to go to public school and the public school near him and he had moved away from the catchment where they were. So it was private school, public school, 5 hours. It took on that they both had advice. But what happened is I they agreed that she would go to public school near where the private school was. And then the next day he called her and said, okay, she can go to private school.

So all that work. And then he which is a good thing, realise its private school.

BP: And for some clients, they don’t agree in mediation. But there’s still enough goodwill or they’re close enough in terms of their offers that it’s worth continuing to negotiate. And a lot of those matters don’t go all the way that we’re hearing in court. They still manage to reach an agreement. Some are in a line.

FT: Absolutely. And mediations are very arduous and can be long. And sometimes you get to a person’s saturation point. Okay. And that’s one of the big things as a mediator, probably as your experience as a lawyer, too, is knowing when you can’t push anymore or you can’t go forward because the party’s exhausted. There’s a finite time there. And so what happens is when they go away and let it sink in. Then a lot of times they’ve started the process. It can continue it’s now, boss.

BP: And that’s one of the skills of a good mediator is now where not to push parties any further, because if you push them further, they do reach an agreement is likely to be biassed remorse, isn’t it?

FT: Absolutely. And other mediator is a lawyer or her lawyer or whoever forced me to sign this.

BP: Sure.

FT: And then what happens is they just don’t follow it. And then, yes, there’s a line there that you really have to watch. And it’s difficult at times because you’re almost there and you’re not quite there. And it’s just but it’s to the point of saturation, it’s hard to, but you have to for the clients sake. But also for sake is a mediator. And the lawyers say because otherwise you come back that you’re browbeating the client.

BP: Sure.

FT: Yes.

BP: So is mediation cost-effective?

FT: Absolutely. To go to trial in a parenting matter will take you generally, what, two years, and it will cost you at least a minimum of 25, 30, 40,000. It could be even more if you have a barrist. Or it could be even more if you have family court reports. And, you know, it could go up to a hundred or 200,000, as we know. And even if you have a child consultant in mediation. So mediations generally for a day of mediation and child consultant, you’re talking while you’re talking about, you can be talked about between anywhere between four and, say, six or 7000, then it’ll be done normally.

Okay. So what happens is the financial cost that day. It is done essentially. Maybe there might be some paperwork to do. And not only is it financially cost effective, it’s emotionally cost effective, because then the parties don’t have to live in that vortex of conflict, which is what this system is set up to be, you know, one against the other and a judge is going to make a decision. And then what happens is the parties get caught in. So it’s very cost effective.

BP: As fees may seem a lot of money, but it’s so much better for most people.

FT: Yes.

BP: And they the alternative of playing the media guy through court.

FT: Exactly. You know, some people say, well, that’s a lot of money. And I say, well, yes, it is. But it’s not near what it will cost if you continue down the path of litigating.

Also talked to him about, as I was just saying, not only the cost of the financial cost, but the emotional and mental cost of and you’re still hooked in this vortex of conflict with your ex until it gets something happens. And then even if you get a third party to make a decision, one of you is not gonna like it. And then, you know, the horror stories as well as I do, Bruce, somebody might appeal it. And then it just goes on and on and on and cost more and more.

Yes. And yeah, it’s an adversarial system. And it’s not good, particularly for children, because they’re piggy in the middle. So. 

BP: Tell me, is it common for mediation to be done by through more telephone, especially in these tied times?

FT: Yeah. My experience is well, and I use Skype a lot, but some people use Zoom. Some people use teams. It is common in this time. And or I do telephone mediations. I do other kinds of mediations, mostly by telephone. It is getting much more common. So, for example, I had a mediation on Tuesday that we’re supposed to do it in person, couldn’t do it in person. So we did it via Skype. And at work, they result.

So. Yeah. They are becoming more common. And you get them a lot of times when people are in different places. So if you have somebody in Brisbane and somebody in you know, Adelaide or something.

They are a useful tool. There’s nothing like having parties in person, even if you have them in separate rooms. But if not, they’re the next best thing in doing it by telephone, I think telephone me is last.

BP: That makes sense. And what do you suggest people do to prepare for mediation?

FT: That’s a good question. I guess there’s a couple of things. First off, get legal advice. Okay. Secondly, if you have concerns that you haven’t told me during your intake, particularly if we’re talking about children now, write them down. If you have other issues, write them down. We’ll go over them that morning because I meet with each of the parties separately. Don’t panic. This is a time to have a discussion, what else they should do. So that’s parenting and also for property. So one of the things I do with people for property is, again, get legal advice.

Make sure the disclosures done. So a lot of times what happens, Bruce, is if they’re self reps and it’s one of these small ish kind of matters. I will send them what Rule twelve and 13 say, which are the disclosure sections and say, you have to give this to each of you and it has to be done before mediation.

Tell them you just try to be as calm as you can to talk about the children or the property. But the big thing is to get legal advice if you don’t have a lawyer.

BP: And what do you find are the common impediments to people reaching an agreement? Mediation.

FT: Sometimes I just had a couple in the last couple of months haven’t resolved, but I call it bigger dibbly moments. Yes.

BP: Yes.

FT: No. In property matters, it could be you get things where people don’t get advice, they come into. I’ll give you the example of two weeks ago, the man came in, said he had gotten advice, and he said because he was the breadwinner, they had three kids. She, you know, gave up a career and raised the kids. And he said he should get the majority of the property because he urged. And I tried to explain what did you talk to a lawyer? Yes. Did he or she explained to you about contributions?

Yes. Okay. What’s your understanding that I get most of it. And it was like that was one of the impediments. So they think their idea of fairness or justice, it is the way it should be. Even if I found this out in the remediation intake and I’ve said, you really need to concentrate on legal advice on that other impediments or somebody’s just so angry doesn’t want to resolve or you get they’re so positional they don’t want to resolve. Those are sort of the ones I see.

You can get people that are very narcissistic. I think they’re absolutely right. And if you try to challenge them, they’ll go crazy. Those to me are the common impediments to reaching an agreement at mediation.

BP: So thanks for your time this afternoon. Your well being very, very informative. And for people listening, I hope you found that useful.

FT: Thank you, Bruce. And it’s always good to talk to you.

Outro: Thanks for listening. If you have any questions, please don’t hesitate reaching out to Bruce at pageprovan.com.au.