Featured Article by Andrew Tiganis, Legally Yours – 27 March 2023
Today I sat down with Barry Berger from Dignity EDR, to learn about his journey in the law, his esteemed career in family law, his thoughts on the new reforms to the Family Law Act, the difference between acting as a lawyer vs mediator, what Barry believes is the secret ingredient to a good mediation, and finally Barry’s thoughts on online mediation.
To begin Barry, could you tell me a bit about yourself and give a brief overview of your career?
My career actually began before I was admitted to practice. While studying Law and Economics at Monash University, I had the opportunity to set up the St Kilda Legal Service alongside three of my colleagues. Through this experience, I gained practical knowledge of dealing with people, not just law books, and learned how lawyers operate in an advisory capacity.
I was admitted in 1975, the same year that the Family Law Act was enacted to commence on the 6th of January 1976. In my first year as a lawyer, I dealt with matters in the old Matrimonial Causes Act and was at the same time preparing for the revolution in family law that was the Family Law Act. It would be a brand-new system that removed the requirement for any ‘old-fashioned’ grounds for divorce.
Throughout my career, I have primarily worked as a family lawyer and in 1991, I became one of the first accredited family law specialists by the Law Institute of Victoria. Family Law was the first area of law to have an accreditation of specialist system, and other areas of law followed.
The reason I point that out is that family law and the Family Law Act started to develop a reputation as a trendsetter as to how law should be dealt with in a society.
Most recently in 2021, my son Leon and I established Dignity EDR – Effective Dispute Resolution and Dignity Legal – alongside Leon Berger. It is an initiative which specialises in out-of-court settlements and expert guidance in all relationship matters.
Can you tell me a bit more about how the Family Law Act was a trendsetter?
The Family Law Act was a trendsetter in several ways.
First, it provided for “no-fault” divorce. Secondly, one of the key aspects of the court process was the requirement that two parties go through a conciliation in financial matters before going before a judge. This was a ground-breaking approach that introduced the idea of lawyers considering how to resolve disputes rather than simply running their client’s cases in an adversarial manner. While conciliation had previously been used in industrial disputes, it had never been used in “people law” until the Family Law Act. Thirdly, in parenting matters an experienced and forward-thinking methodology of court ordered reports was established.
However, societal norms and values have changed dramatically since the Act was introduced in 1975. Family law has had to adapt to these changes to better reflect the people it serves. For example, in 1975, the law did not recognise people who were living together in a domestic relationship, and children born outside of marriage were treated differently than those born within it. And child support (termed “child maintenance”) was dealt with in the Magistrates’ Courts. These outdated views have since been challenged and the law has evolved to better reflect modern society.
As someone who has worked in family law for 46 years, I have witnessed many of these changes firsthand. While the early Family Law Act was certainly ground-breaking, it is important to recognise that it was developed in a different era and has had to adapt to respond to the challenges faced by society today. Nonetheless, it remains an important landmark in the development of family law and the recognition of the need for alternative dispute resolution processes.
New reforms to the Family Law Act aim to prioritise the interests of children in family law courts. Does mediation already better prioritise the interests of children and how?
To put it simply, I do not think that you can compare litigation and mediation as being better or worse. In family law, the welfare of the child is always the paramount consideration. However, clients often have their own perspectives on what is best for their children, which may not align with the law. That is where experts in family dispute resolution (FDRPs) come in. As lawyers, we are the experts in the law, but we need FDRPs to help us in promoting the welfare of children.
At Dignity EDR, we use a joint mediation model with two mediators: one is a lawyer, and the other is an allied professional (FDRP) such as a psychologist or a counsellor. Mediation is a tool that can be tailored to prioritize the interests of children. It’s an alternative dispute resolution (ADR) method, along with conciliation, facilitation, and collaboration. I don’t like calling them “alternate” because that suggests litigation is paramount, and anything else is secondary. Instead, I prefer to call them “additional.” There are many ways to resolve disputes, and one isn’t necessarily better than the others.
There are situations, such as where there are allegations of family violence, where mediation may not be appropriate, and litigation is the necessary course of action. Judges are best equipped to handle these cases through their specialised training, which is heavily inscribed in the Family Law Act. Since the September 2021 reforms to the Family Law Act the emphasis is on resolution before you can go to court. This means that the two parties will have to first go through an extensive “pre-action” process (including Mediation) and exhaust all avenues before they are able to have their matter heard before a judge.
This new philosophy is based on the idea that mediation can be a better, quicker, and more cost-effective way to resolve parenting disputes in certain situations while also easing the burden on courts.
Do you think that these changes are a step in the right direction?
I think that this poses another question. Who is this message directed at? The September 2021 reforms are directed at the lawyers practising but also society more broadly. The norm in our society is that court is how we resolve disputes. We see court cases every day on the news and social media. For the reforms to be a step in the right direction we need societal change. We need society to believe that mediation is the effective way to resolve disputes, and that court action is the last thing that should be used-reluctantly.
At Dignity EDR we are promoting utilising compromise as an alternative to court. Our society is so broad and complex that there is a necessity for forms of dispute resolution beyond litigation such as mediation, conciliation, facilitation and collaboration, and for people to accept that a negotiated result is almost always better than a result that comes out of litigation in family and relationship matters.
Throughout your 46-year career, you have been both an experienced family lawyer and mediator. How does your mindset differ when acting as a lawyer versus a mediator?
In my experience, the mindset required for mediation is quite separate from that of a lawyer. In mediation, the focus is on compromise and finding a middle ground that both parties can agree upon. This often involves navigating various shades of grey, rather than taking a black and white approach.
As a mediator, my role is to facilitate communication between both parties and help them understand each other’s perspectives. Unlike a lawyer, who may advocate for their client’s position, a mediator needs to remain neutral and not promote any one party’s interests over the other’s.
The mediator’s task is not to make a decision, but rather to encourage and facilitate a settlement. If one party comes in with unrealistic expectations, it is the mediator’s responsibility to help them see the alternatives and consider whether their position is feasible.
While mediation is not always the best approach for every situation, it can be a highly effective methodology in many cases.
What do you think is the secret ingredient to a good mediation?
In my opinion, the most crucial element of any successful mediation is that both parties must be willing to engage in the process. If one or both parties are not ready to compromise and seek a resolution, the mediation is likely to fail. Forcing a mediation in these kinds of situations is like putting chilli oil in chicken soup – you can do it but it is not the right ingredient!
It is also essential that both parties have been given a realistic expectation of what is and isn’t achievable in the mediation. Lawyers, family members, or friends can provide a reality check to help the parties understand the likely outcomes of their position.
Ultimately, the secret ingredient to a successful mediation is a combination of respect, open communication, and a willingness to compromise. With these factors in place, parties can work together to find a mutually agreeable solution.
Nevertheless, many Mediations proceed in circumstances where there has not been adequate due diligence or a proper understanding of the components of the dispute-it is critical that both parties are mediating in a “full knowledge” situation.
Do lawyers do a good job at giving this reality check?
The September 2021 reforms placed a heavy emphasis on the obligation of lawyers to provide these reality checks to their clients. This includes not allowing clients to make unrealistic claims, advising them on the reasonableness and costs of proceedings, and exploring alternatives. It’s important to note that these costs aren’t just financial, there are also emotional, time and opportunity costs. Lawyers are now required to give advice beyond just following their client’s instructions, and to test those instructions and suggest alternatives. This can be difficult for some lawyers, as it may seem to go against their client’s interests, but it is necessary.
What are your thoughts on online mediation? Do you think it was an unfortunate necessity during COVID-19 or can online mediation be used as a tool with its own benefits?
The Pandemic showed that what was traditionally done in-person, and exclusively in-person, could be transitioned online. People’s problems did not stop during the pandemic, and the need for resolutions also did not stop. Conducting mediations online became the new normal and even post-pandemic they are still a useful tool to resolve disputes when location is an issue. While some suggest that something as intimate as a mediation is better done in person, we have found that the technology is so good that even online mediations can achieve the same results.
Of course, in circumstances where there are allegations of domestic abuse or coercion the use of “on-line” Mediations became very useful in advancing the prospect of settlement.
I do not think we should choose between online and in-person mediations. My word of the moment is ‘co-exist’. Both methods should co-exist as additional methods of facilitating compromise between parties.
To connect with Barry, Leon and the team at Dignity EDR, head to https://dignityedr.com.au/
Legally Yours article link: https://legallyyours.com.au/qa-feature-lawyer-interview-with-barry-berger-dignity-edr/