The theory of interest based negotiation underpins and is essential to the teaching of both facilitative mediation and collaborative practice. We have seen in Queensland a significant increase in the use of mediation as a stable form of dispute resolution in family law matters. In addition we are seeing a steady growth in the practice of collaborative law. Trained mediators and collaborative professionals are taught the importance of identifying the underlying interests of the parties and using those to create a sense of common ground or ‘win win’ outcomes. Often however the underlying interests of parties are intangible concepts- goals, values and sometimes even dreams. We operate in a no fault family law system. Fundamental to this system is that it often removes ‘the intangible’. Our Court system is focused on tangible things- those matters that are provable, realisable and evidentiary. Therefore, lawyers are trained to place much value on those tangible or provable matters often to the detriment of the intangible interests of our clients. How then can we successfully operate in facilitative mediation and collaborative practice where we are being asked to balance the tightrope that exists between our client’s legal rights and entitlements and their personal goals and interests? Mediations conducted in the family law sphere are rarely in practice facilitative or interest based. More often than not such mediations are conducted between 2 groups of clients and their advisors positioned in separate rooms with the mediator moving between each room exchanging offers and proposals. There is little room in this negotiation model for proactively seeking a solution that benefits both parties in relation to their intangible interests. Is seeking a “win-win” from every mediation or collaborative practice an impossible dream, and should we focus on what these processes often seem to be, an exercise in damage limitation through compromise, the larger compromise by the client with the most need or desire for the process to end? Is it this desire to reach an outcome that is “win-win” that brings an increasing number of family lawyers to collaborative practice, and is this the reason why interest based negotiation is firmly cemented as the fundamental core of collaborative practice, above the “legal rights” of the clients. This alteration in focus leads to the lawyers involved necessarily requiring a skill-set that goes beyond technical expertise and the provision of legal advice. How do lawyers learn these skills and abilities, and are they able to be taught in a similar way to more traditional legal skills? What role should and does interest based negotiation play in the resolution of what is a legal dispute which is decided, to a great extent, by pre-existing legal rights, especially in a system where the intangible interests of clients are considered less important that which can be easily quantified?

2. Clarissa Rayward
• Director Brisbane Family Law Centre
• Accredited Family Law Specialist
• Mediator & Collaborative Family Lawyer
• Also known as “The Happy Family Lawyer”
Anne-Marie Rice
• Director Rice Naughton Family Law
• Accredited Family Law Specialist
• Mediator & Collaborative Family Lawyer

3. Is there really a place for
interest based/
facilitative mediation in
a legal world that is
focused on a client’s
rights and entitlements?

4. 4 parts to our discussion-
1. What is the current practice of
mediation in family law matters?
2. Should we as legal practitioners
shift to interest based or
facilitative mediation models?
3. Do we have the skills necessary to
make this shift?
4. What advantages might there be
for families if we did?

5. What is the
current ‘style’ of
mediation used
in many family
law disputes

6. In a Court system that is
focused on the ‘tangible’-
those things that are
‘provable, realizable and
evidentiary’- is there a
place in negotiations for
the intangible?

7. Is it time for
lawyers to get
comfortable with
the ‘uncomfortable’-
the intangible/ the
immeasurable?

8. What is the juice?
Is it ‘different’ for lawyers
and clients?

9. What are the
advantages for
practitioners
and clients of
working in an
‘interest based’
system

10. Can we all have
the juice?

11. THANK YOU!