Mediation File - assignment PDF

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Warning: TT: undefined function: 32PART AALS Lawyers Wollongong 10 Main Street Wollongong, NSW 2500 PH: 02 6292 4738 Email: [email protected] Your ref: MM 123/ Our ref: 721/Date: 23rd of April 2020Mr Michael Mayfield 13 View Road Fairy Meadow, 2519Dear Michael Mayfield,Pre-Mediation Summary I am writ...

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PART A ALS Lawyers Wollongong 10 Main Street Wollongong, NSW 2500 PH: 02 6292 4738 Email: [email protected] Your ref: MM 123/20 Our ref: 721/2 Date: 23rd of April 2020 Mr Michael Mayfield 13 View Road Fairy Meadow, 2519 Dear Michael Mayfield, Pre-Mediation Summary I am writing this letter as you have requested for me to reiterate that I, Emra Kapic, will be representing you in the meditation between you and your ex wife Anna Jones. The mediation is set to take place on the 28th of May 2020 with a mediator via a zoom conference. It is important to note that both the court and the mediator will have the outmost regard to the child’s best interest and will decide on orders that promote those interests. I have received your instructions that detail what you want to achieve and will advise you on the strengths and weaknesses step by step and assess the chance of the opposing party agreeing to them. 1. I understand that you don’t want Anna to move with the children to Byron Bay and if she must go that she leave your children, Emma and Jordan with you. Section 60CC(2)(a) of the Family Law Act questions whether the best interests of the child can be maintained if one parent moves. However, it can be noted that it would perhaps be more detrimental if the whole family unit moves and the children stay. As you already have a parenting order that is successful and that works for your family where the children reside with their mother it is unlikely that the court will change this. It is also unlikely that Anna would agree to this as it would not be in the best interests of the children to move them away from her and their step-father and half sibling. As your lawyer I encourage that this would not be acting in the best interests of the children. Also, I would like to advise you that I anticipate that Anna will strongly object which will be extremely difficult to achieve. 2. Jordan has already expressed a desire to stay with you and you have heard that the Court will have to go with what a child wants once they are 10. Deciding whether Jordan could stay, and that Emma leaves with Anna is one decision you must not take lightly. This would mean Jordan would be separated from a family is has grown accustomed to. Per your instructions you state that you would not be comfortable with this and therefore I find that this would not be the correct avenue to take. Also, any views expressed by the child (60CC(3)(a)) – Case law has made it clear that the views of children must be taken into account, but the court is not bound to follow them. The amount of weight put on them will be influenced by the age of the children and the strength and frequency of the view expressed. Best interests must prevail over views expressed. Jordan has only stated once that he would stay with you however it is

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because he doesn’t want you to be sad not because of his own interest. Also, the fact that he is 10 years old indicates that he is still young to make major decisions. You state if Anna is going to go, you could probably live with it if you got a new arrangement with the kids that gave you most of their school holiday time. You specifically outline having all of the Easter and September/October holidays and half of the July ones and half of the Christmas holidays. You also request to have them at Christmas time but are prepared to share on an alternate basis – maybe his 3 weeks (out of 6) for the Summer holidays would be the first three weeks one year (which includes Xmas & New Year), and the next year the last 3 weeks. The existing order gives you half of each of these holidays, however since there has been material change to the circumstances i.e. Anna moving to Byron Bay will allow for this order to be altered and for the terms to be re-negotiated. If Anna goes, you would be wanting for her to share some costs – perhaps pay for 3 return flights from Ballina (nearest airport) each year. In relocation cases, where relocation is allowed, the Court has power to order the party that moves to contribute to transport costs or otherwise help with transport. The cost and practical difficulty of any orders made (60CC (3)(e)) – the court will take care to ensure that orders made are not impracticable and will not place an unfair financial burden on a parent. Therefore, I will have no issue fulfilling this request. You also mention that you travel to the North Coast frequently for surfing and request that Anna agrees to allow you extra time with the children if you were up there on holidays. This is a reasonable request however Anna may not have to agree as it is not in the parenting order. I will attempt to negotiate this point in the mediation. If you moved closer to Anna and the children in the future it is likely that a new agreement would be negotiated as material circumstances will take place. You would like to be able to call and skype/face time regularly. Per the existing parenting order states in paragraph 5 that the children shall have unlimited telephone communication with the father at all reasonable times between the hours of 8.00 am and 7.00 pm and, for that purpose, the mother shall permit and facilitate the children telephoning their father at such times as they shall request. This will not be an issue to obtain. You have heard (via a friend) that Anna is wanting to change the children’s surnames to Jones – her new married name. I understand you are completely opposed to this an I can reassure you that a parent cannot unilaterally change a child’s surname. The court will however look which name best promotes the child’s interests (Chapman v Palmer). Although the children share a half sibling with a different surname is not sufficient to warrant a surname change as they have a close relationship with you and the court would not order this.

Finally, I want to walk you through the mediation process. A mediation is where there is an independent third party, trained in techniques of dispute resolution, facilitates negotiation between parties to a dispute, assisting them to arrive at their own solution to the dispute. My role is to assist you during the course of the mediation. I will also discuss with the mediator, with the other party’s legal representative and with clients. I will also prepare the terms of settlement or heads of agreement in accordance with the settlement reached at the end of the mediation for signature by the parties before they leave. Yours faithfully, Solicitor 2

PART B Mediation Plan Aims of mediation Non-negotiable terms 1. Michael is completely opposed to Anna changing the children’s surnames from Mayfield to Jones. Desirable items 1. He would like to be able to call and skype/facetime regularly. 2. Michael would appreciate Anna sharing some travel costs. He specified that he would pay for 3 return flights from Ballina each year. 3. When Michael travels to the North coast he would like to have some additional time with the children if he was up there on holidays. 4. If he moved closer to Anna, he would like to renegotiate the agreement. Tradable items 1. Michael is willing to agree to Anna moving to Byron Bay with the kids if he got a new arrangement with the kids that gave him most of their school holiday time. 2. Michael was wondering whether Jordan could stay, and that Emma would go with Anna, though he is not sure if he is totally comfortable with that. Bottom line It is clear that Michaels most important factor is to spend as much time with the children whether that be by seeing them or communicating to them via phone.

Plan for Conducting Mediation •

Opening statement: have a clear, concise and simple statement that is firm. Keep your opening statement based on your clients side and focus on that instead of speaking about the opponent.

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Have a pre-prepped order that the other party could have ready to sign that in your opinion meets both parties to the best of your ability.

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When an agreement is reached to draft an agreement that can be readily signed to avoid parties changing their minds. Or to write the agreement by hand and get each client to initial to hold them accountable.

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To ensure that the parties settle on an agreement.

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To ensure that the agreement will be not only drafted but also enforced upon both parties.

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I seek to achieve my clients aims by: Understanding the rules and guidelines of the mediation process: firstly, by maintaining confidentiality and that the information obtained cannot be used later against someone in court. Secondly, maintaining some level of formality. Preparation: it is important to appear with an essence of strength which stems from being prepared. Knowing the facts and having the best interests of all parties involved in mind. With preparation comes confidence which is fundamental in getting a point across and in negotiating. Plan a presentation: full disclosure to the mediator is ideal when planning. Openness: being forthright and ensuring all parties have all the information and facts as withholding information can be counter-productive. Patience: in order to reach an agreement, it is important to remain patient and understanding with the opponent and mediator. You should also ensure that your client is patient and doesn’t form a habit of interrupting or arguing. Willingness to compromise: it is important to prepare my client to ensure that they will be open to compromise their wishes. The mediation would in this case be pointless and should not be undertaken as the point of a mediation is to form an agreement not ‘win’. Develop a negotiation strategy: that aims at showing your clients side and finding way that is desirable for both parties.

Perceived Aims of Opponent Non-negotiable terms 1. Moving with her husband and three children to Byron Bay. 2. Ensuring that all the children stay together as it is in their best interests. Desirable items 1. Perhaps sharing Christmas and Easter holidays and Mother’s Day. 2. Anna is wanting to change the children’s surnames to Jones – her new married name. Tradable items 1. She would be willing to trade the children’s holidays as she will have them on weekends which were previously shared between her and Michael. 2. Anna would be willing to share some costs associating with travel as it would mean she could move to Byron Bay.

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PART D: Reporting the outcome Memorandum DATE: 7th of May 2020 FROM: Emra Kapic (Solicitor) TO: Rachael Stevens (Supervising Partner at ALS Lawyers Wollongong) SUBJECT: Outcome of Mediation between Mayfield and Jones.

The Mediation took place on the 28th of April 2020 via zoom call. The mediator that conducted the mediation was Sally Lockwood. Mrs Jones’ Lawyer, Hana Seraphim and I were present for the mediation and acted on behalf of our respective clients. Summary of Michaels requests: •

Jordan could stay with and that Emma would go with Anna

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Disproves Anna changing the children’s surnames from Mayfield to Jones.

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Regularly call and skype/facetime.

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Anna sharing some travel costs.

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When Michael travels to the North coast he would like to have some additional time with the children if he was up there on holidays.

Michael was successful in obtaining: •

The children will keep Michaels surname.

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That the children shall have unlimited telephone communication with the father at all reasonable times between the hours of 8.00 am and 7.00 pm and, for that purpose, the mother shall permit and facilitate the children telephoning their father at such times as they shall request.

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That the children shall have unlimited telephone communication with the father at all reasonable times between the hours of 8.00 am and 7.00 pm and, for that purpose, the mother shall permit and facilitate the children telephoning their father at such times as they shall request.

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For the whole NSW two-week school holiday periods. Such time shall be calculated commencing 48 hours after the conclusion of school and concluding at least 48 hours before the recommencement of school.

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The period between the end of the school year to two weeks after New Year’s Day; or

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The remainder of the NSW summer school holidays.

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For a period of at least one weekend with both children during the month of each child’s birthday, which failing agreement to the contrary, shall be calculated as Saturday 10am - Sunday 6pm.

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From 10 am to 6 pm on Father’s Day in the event that the children are not already spending time with him on that day

Mediators conduct The mediator was very effective in resolving disputes and maintained the best interests of the children at the forefront of all decisions. The mediator was patient and calm and acted in a very unbiased professional way. The mediator was understanding and always took the time to understand both sides. The mediator outlined some options for the parties to explore: •

Hypotheticals were encouraged to get the parties to view situations in a different light

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Fairness was maintained by the mediator throughout the mediation.

With regard to breaking deadlocks the mediator would put forth solutions and incentives. For example, my client was firm on not wanting Anna to move with the children, however the mediator allowed Michael the opportunity to realise that he would be granted more holiday time and the opportunity to skype and facetime more regularly. Also, with regard to changing of the children’s surnames both my client and Anna were stubborn. The mediator advised both parties that this was not in the best interest of the children and that if the matter was to escalate to court that it would be denied as the Michael is very much a part of the both Jordan and Emma’s life. Another aspect where the mediator stepped in was in relation to Jordan staying with Michael and showing that he would not be successful.

Final Outcome In my opinion I believe the outcome was very suitable for both Michael, Anna and the children. It aligns with the best interests of the children in ensuring that they continue to have a meaningful relationship with their father while also maintaining their normal family unit they are accustomed to with their mother, step-father and half-sister. The new agreement is very fair in the sense that costs and time are shared equally amongst both parents. Finally, Michael was successful in most of the requests he made. Overall the mediation was a success and very efficient. 6

Below is the agreement reached*

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Signed by

Signed by

Michael Mayfield

Anna Jones

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