Ep 44: How Mediation Works

Lawyer and mediator Farley Tolpen discusses how the process of mediation works in a variety of situations and gives us a few ideas on conflict resolutions.... and some funny stories!!

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Transcript

0 (1s):
Hey there, rhino here from the podcast. No humble opinions. So when we talk to interesting people about interesting things today, I have a very cool cat Farley. Tulpan who's going to talk to us about being a mediator.

1 (13s):
<inaudible>

0 (27s):
Good, Ryan, how are you doing today? I'm good brother. I'm good. Thank you for coming all the way to come and see us at Redcliffe. My pleasure. Nice drive. Well, it's a very nice place. I brag about it often on this show, which is funny because there's lots of people that live nowhere near here to listen to Easton. You should come here quite frankly, because it's lovely.

2 (43s):
I do come. We do come probably once every other year and we take the boat out to see the whales from here.

0 (50s):
Oh, deluxe man. How good is that? We did that a few months ago. It was awesome. It's incredible. Do it. People. They are folly from Farley's mouth to your ears. Come watch Wiles. It's great. Mike, you're a mediator. Tell me what, what is mediation? What do you do?

2 (1m 5s):
The simple explanation is I help people resolve conflict. Whether it's in the workplace or family could be over. The kids could be in commercial breach of contract could be neighborhood dispute. It could be real estate. I've been doing some COVID-19 retail mediations, where they put, put some special walls in and it's just getting people to sit down and work out the conflict and resolve it.

0 (1m 35s):
That's such an easy sentence to say, isn't it? That, that's what I do. How hard is that? Some days,

2 (1m 41s):
Some days you could spend 10 to 12 hours in the mediation because it's very difficult to get people to either one sit together or to agree on anything. One may say black and the other says, blue.

0 (1m 56s):
Hi, how are you entirely? So, okay. How long now you have been a lawyer for 37 years. You told me before that that's quite a kick buddy. You don't look even near old now while you do, we need to mediate. Yeah, no. I mean, that's, that's a fail to be doing it. What, tell me about your career. Where did you kick off in Lord? You'd have to,

2 (2m 20s):
Well, I I'm from California or San Francisco originally and I got out of law school and I worked for somebody for a year two. I worked for a big firm and I'm not a big firm kind of guy. So I worked to go back a step. I w I went to night law school and then worked for law firms during the day. So I could learn process and procedure and paperwork and all that. And so then I worked for this couple of big firms, and then I said, nah, I just went out on my own. What sort

0 (2m 48s):
Of law are you doing in the big firms? Anything in particular, I

2 (2m 50s):
Was doing a lot of commercial transaction and litigation and I was just a little cog in the wheel.

0 (2m 57s):
Yeah. That just float your boat, obviously that wasn't for you now.

2 (3m 1s):
It's not my type of practice. I like dealing with people. Cause that was all, you know, court, high corporate kind of thing.

0 (3m 10s):
Thanks. I'm otherwise sate. And as we discussed before the show, I was a cop. So I was always sort of on the other side of lawyers generally. And my understanding of being a lawyer is to your job is to create an argument and to kind of, but you mediate. So what, what brought you to get out of being a lawyer as such and become a mediator to the same sort of thing?

2 (3m 32s):
That's a great question. Can I tell you a good story? I've got a good story. So this is in the mid nineties and I was a litigator. So in California or America, for that matter, you don't have barristers. So I was a trial lawyer loved to try cases. And when you try civil cases in California, you'd get a jury. So just like a criminal matter, you can have a jury of 12 of the peers. So I was, and I loved it because I played to the jury and plenty of Shyman Valley absolutely loved it. Play up my facts, play down there, you know, my bad facts. And we're in the middle of a trial it's three week trial.

2 (4m 14s):
So what happens is about a month before that trial, my life stops and that's all I work on. She worked on a jury instructions and, you know, witness prep and subpoenas and so on and so forth. And we're in the middle of a trial and they call it coffee break instead of tea break. Now I know we beat them in the war and don't tell my wife that <inaudible>. So we come back and coffee break and the jury comes in and the judge says, bailiff, take the jury back to the jury room. And so the jury then just gets up and leaves just as they've come in.

2 (4m 55s):
And the judge proceeds on his own volition is very hot head anyway, to land blast my client, basically calling my client in liar and dismiss our case on his own volition. And

0 (5m 8s):
Th the Netfree jury seems a little bit pointless if he's decided that it's all bullshit.

2 (5m 12s):
Correct. And that's what happened. And we're walking out of the courtroom and the client looked at me and said, what the hell just happened? And I said, we lost. You said, well, what did you do wrong? It's like, and I thought the case was going okay. I, there were some bad facts we had to deal with, but it wasn't insurmountable. And at that point, because I'm always trying cases, I'm never relaxing. There was this new model in California, come out called mediation should basic like settlement conferences. And I thought, you know what, I'm tired. I think I want to resolve conflict instead of perpetuated and try to win.

2 (5m 55s):
Okay. Which they train you to do in law school. So then I started this mediation model. I started doing some family matters and then some personal injury matters and some contract matters as some estate matters, thought I liked this. So I had my own law practice and I still practice law, but then I set up a mediation practice. So I've been doing that since the big mid nineties, but it was that sort of wake up to like, let's resolve conflict instead of perpetuating,

0 (6m 25s):
Man, I, I dig that. I really do, like, because I feel that there is so much unnecessary conflict in our society, people, the mad desire to be right. The mayor desire to just have one opinion in that seat, you can agree to disagree. And I, I struggle with that because I'm a gray on gray area. Like I can so often see someone else's point of view, even if I don't necessarily disagree with it, but sorry, I agree with it. I can see their point of view and I can try and give a little bit and sort of, you know, just work with it. You know, it's a compromise, well, we'll do that. Or

2 (7m 4s):
Civil discourse that civil discourse, you can disagree with what I say and that's fair enough. But it's having the conversation about it in a calm, civil way.

0 (7m 18s):
Yeah. W manners and respect common courtesy. Yeah. You Cohen. And some of the, some of the podcasts I've done on these one in particular was, yeah, my name was known. It was, that was one sided and Talia. And it was, I found it very difficult because for me, there is no black and white, how many now everything's got some sort of gray area to some degree and people might disagree with that. But in my experience in the world, that's what it is.

2 (7m 45s):
And there's always shades of gray. And I say that to people and I'll go through the process. I tell them, you know, there's your story, there's the other party's story. But there's then the, the real story or the truth somewhere in between, correct? Yes. And that's the gray area.

0 (8m 3s):
I've heard that, that statement said plenty of times in regards to, and it's true. And because it's not that someone's lying, it's just that you get, you take your perception for you, take your view from the way you would perceive a situation. Sure. So your it's like with witnesses in, in a police setting. Yes. You get weaknesses there. They're all raw, as far as I could see them, but they're all different. And you're very rarely get two people that saw the same thing at the same incident. And why, because there's different ways of perceiving whatever's going on. So for someone in a mediation situation to be saying, nah, I'm a hundred percent, right. That's a weed thing. And it's, I mean, your, the experience, one of these, do you, do you find that people ever understand the fact that they may be not a hundred percent rubato?

0 (8m 45s):
Well, I, I,

2 (8m 47s):
Mediation's not whether who's right or wrong, but how can we, how can we resolve whatever the issue is? Parenting a tree knocked down a breach of contract dealing with parents' estate and how you divide the money up is a good one. Oh, that's a lovely one. And very emotional and

0 (9m 8s):
No Fiverr. If all, what happens if I rock into your office and I've had a disagreement with someone, you can pick whatever it is. If you want hand, does the process work? What do we do?

2 (9m 19s):
All right. So, so you call me or you come and see me and you tell me, give me briefly, what's going on. I don't want to hear a lot yet. And then I get to basic information, your telephone number, email, and I get his or her same information. And then I invite them into the process. And basically it's real simple and say, hi, I'm Farley toping. I'm a mediator. I've been contacted by your ex you know, your ex-employee your ex partner, your, you know, the neighbor, whatever, whatever it is to sit down and have a discussion mediation about some issues. And I explained, I'm an independent and impartial third party. I don't know who's right or wrong. I'm just here to get you guys to talk about it and see if you can, and to help you work it out.

2 (10m 3s):
And then I explained to him that in my experience, Oh, wait, between 85 to 90% of all mediations result.

0 (10m 11s):
Yeah. So does everyone, does the other party always know that you're going to call or is it sometimes off the cuff?

2 (10m 18s):
Yeah. Sometimes it's off the cuff and sometimes people are shocked and angry and I never get hung up on, but sometimes they may want to think about it. Yep. And then I usually, if they say no, or I want to think about it, just follow up with an email, give them a certain time and then they can decide what to do. Yeah.

0 (10m 37s):
And this is, this is pre suing and going to court and all these things can

2 (10m 42s):
Be, or it can be during the process too.

0 (10m 44s):
Oh, okay. Yeah. Do you get, do you get boarding by the court or by just the, the people arguing

2 (10m 51s):
I get brought in by the Corps, I've get referrals from some judges and, and, or I get referrals by lawyers. Hey, why don't we use Farley as an example? And we'll go to him and we'll tee it up. Yep. Okay. And when I went, whatever it is, once the parties have agreed, they have to pay me. Then I do separate telephone intakes. That's about an hour, hour and a half. Where as say, it's, you I'll ask you. Okay, Ryan, what, you know, I'll go through the process. I'll explain the mediation process that I'm impartial. I'm here to help your mediation. You make the agreement with the other party.

2 (11m 32s):
I just keep it focused on that and manage the process and keep you guys from, you know, killing each other or yelling and screaming. Okay. But I also tell my actively facilitate it. And I explain what that means is I want to be able to interrupt if necessary. If I think self-based, I want to be able to make suggestions based on my experience. Some of my experiences as a mediator, lawyer, a person who's been in. Yeah. And the human, and then third reality test, because being legally trained, I know a range of what a court of law would do. I can't tell you exactly because you never know. And I do that with both of them. Then I take a history. So I'd take a history from you and talk about the issues and start to brainstorm.

2 (12m 17s):
How can we resolve it? And from that conversation, I, I learn how to deal with you and where your personality is, where you are. Okay. I might be able, I might have to be very serious and speak like this to, you know, jokey, or I might be able to go blokey with you, or I might be able to talk sport or talk about, you know, whales, whatever, or, you know, whatever, find common ground, absolutely whatever helps me help you have a discussion and resolve. And I work within what I see is your personality. So, and you,

0 (12m 52s):
One of the bit, it's him, I guess assess me and my, my feelings on the matter, in a private time so that you just get to know me for who I am.

2 (13m 0s):
Yeah. That's that separate telephone intake. That's a one to one and a half hours. Yeah. Cool. And from that, from that conversation, I can tell whether it should go forth or not most often, probably 90, 90, 95% of the time. It will go forth. Yep. Okay. Why wouldn't you go forward if there's, if the person is so angry that can't have a conversation, I've had those, if there's possibility of criminal activity, horrendous domestic violence, if it's going to worsen the situation. Okay. And I'll give you an example of that is I did a parenting matter and the guy just started yelling at me because I questioned him on something.

2 (13m 48s):
And it asked for permission to do it as I was explaining, he didn't like that. So I knew that couldn't go forth

0 (13m 56s):
Disappointing. Isn't it? I mean, yeah, but as you say, 95, 99% of them you take on and go forward. That's pretty good going. Cause people are in people whose mindset becomes very skewed when, when they passionate about passionate, but somebody will genuinely passionate about what their point of view is. In a matter, especially in a dispute,

2 (14m 18s):
When they come to me, they are one of the negative emotions. They're angry. They're frustrated, they're bitter. They're sad. They're, you know, they're just am really frustrated. It's a big one. Cause they think they're right. Yep. So when they come to me, they're in conflict and it's the emotions are high. Yeah. Okay. I tell people, they don't come to me because I'm good looking, which I am or, or that, you know, they like my accent or your accent, but they come to me because there's conflict.

0 (14m 50s):
Yeah. I might have. Well, and if they've accepted that, that way of doing things without looking for a resolution, because I've met some people in past that don't want to resolution that they enjoy the fight more than they want any sort of resolution have to say, they would be one of you one or 2% automating that. You'd say, look, sorry. Let's wait. We're done. So what happens to them? Does it just go to court and

2 (15m 11s):
Yes, it goes to court and what happens is, and depending on what court it goes to is normally the judge will kick it out to mediation anyway. Yeah.

0 (15m 19s):
Give it a, give it a go as best as I can. Yeah.

2 (15m 21s):
Within the court process. Yes.

0 (15m 25s):
All right. So you've interviewed both parties over the phone, whatever you call it. I apologize. But intake intake. So you have an intake with both parties over the fine. How does it progressing? What happens?

2 (15m 36s):
So what I've done then prior to that intake, I've set out my mediation agreement, my invoice. So I get paid. And before we go to mediation, we've we in that initial conversation when they both have the grade, usually separately, I talk about dates for mediation, set a date for mediation. So now we've done the intakes. Now they're there the day of mediation. So I meet with, in that more, usually start in the morning and it could be a half or a full day mediation, depending what the issues are.

0 (16m 6s):
Did I bring people along with them? Do they have the lawyers or they bring,

2 (16m 10s):
They probably half the time they bring the lawyers or they have lawyers on call or they bring support people. Okay. But to be in the same room, both parties have to agree that if you're going to bring a support person that, you know, cause that person sits in there, but it's that there's tension. You don't want that to happen. Okay.

0 (16m 29s):
If you don't want to stay in either man and they do, you just want a support person is not some hoking guys steering you down at the, the other parties. That intimidation is not part of it

2 (16m 38s):
<inaudible> we don't want to power imbalance. So if one party says now and the other party insists, then we do a shuttle mediation. What's that? I go back and forth from room to room, right?

0 (16m 50s):
No, it's like negotiating. Pardon me? Is it unlocking negotiating a little bit?

2 (16m 53s):
It is. It is. And, and it's through me. So I always tell people don't shoot the messenger. But what happens is most of my mediations are done jointly. Okay. So you have a, you have a room set up. Yes. Oh, well I rent rooms. Okay.

0 (17m 10s):
Okay. Rolling. Because you are a virtual business, aren't you? That's correct. Your business is called the mediation experts. If anyone is wondering, and it is a virtual business, which we were discussing is super cool. These days, you can do those sort of things. Yeah. So you set up an office type situation with, you know, people sitting opposite each other I'd imagine. Yes. And are you the only guy, are you the only part of your team in there or

2 (17m 31s):
Usually it's just me. Yeah. Nine times out of 10. And what happens is, is I V I've met with each of them that morning and a half hour beforehand. I've checked in with, you. See how what's been going on since we last spoke, what do I need to know? Are there any other issues? And then I list the, you want to talk with him or her about

0 (17m 52s):
You'd get a, feel, a personal feel of how someone's doing on that day as well. I'd imagine because phone calls are a willing good, but sometimes when you meet someone face to face, do you ever figure out that this might not be quite what I thought it was? Or

2 (18m 5s):
It happens a lot because then I go by my experience and sometimes it's wrong or maybe I don't want to use the word wrong or it's different than what I expected. Sometimes the person that I thought it was going to be very difficult, isn't so difficult. Or the one I thought was going to be very nice. Isn't so nice. So you just don't know until the day. That's why, but it's good to do it in person, particularly when you're doing with high emotion, things like workplace mediations, parenting matters, estate matters where you're dealing with family. That's probably up there and emotions. And I've got a good story to tell you later about that.

2 (18m 45s):
I'm looking forward to storytelling. And then once I've done that we get together. I go through the day, I get them to sign my mediation agreement. And then we start outlining the issues that each of them want to talk about.

0 (19m 2s):
Now, do you, do you handle that primarily? I mean, I imagine if say some people all on water and my ex once wonderfully said to me, I said to a counselor, I went to, she said, I'm allergic to him. If he opens his mouth, I'm just, I hide everything he says, and it was a bad time. And you know, it was just, that was part of a learning curve and it wasn't great. But I mean, do you say, therefore, do you, do you open the conversation saying what both parties want to discuss or does both parties get to say their own?

2 (19m 33s):
W you'd normally what I've done is I've talked to you twice. Now I've spoken to you on the telephone and I've spoken to you private and in the private session, both sessions have concerned the issues you want to talk about and labeled them in an outline for a outlined position. Okay. Could be a workplace. We need to talk about communication. We need to talk about our roles. We need to talk about time. We need to talk about dealing with certain things, whatever it is. Okay. And then I'll, I'll tell that to the other person. This is what Ryan was talking about and here's what Joe or Jane wants to talk about to you. Yep. And then from that, we make an agenda and they're positive solution-based questions.

2 (20m 15s):
So for an estate, somebody might want, it might be claiming a family allowance. Okay. So what does the family allowance look like? That could be a question or in a parenting matter. How will we communicate in the best interest of the children? And we may break that down to sub categories start, we're starting over now. What if there's an emergency? How will we regularly communicate? What's the response time? What's the boundaries on our communication? What if we don't like it? What if we're stuck or in a COVID-19 we could be talking about, well, how are we going to look at reduction of the commercial lease due to COVID.

2 (20m 58s):
Okay.

0 (20m 59s):
When you say before about commercial stuff, plus you can know COVID-19 so that's, so you've done some work for, with tenants and landlords discussing laces for one.

2 (21m 7s):
Absolutely. So there's the state government about a year ago, actually, the, it started in may that the state government set up an organization called Queensland small business commissioner commission. And what they did is they would mediate matters to disputes between commercial, Les sores and lessees, and mediators could apply to be on the panel. Well, I'm on the retail shop, lease panel QCAT so I just applied to be there.

0 (21m 43s):
Interesting. And that is, it's always fun. I've had a bit to do with that one at my time. So

2 (21m 49s):
They can be just as cranky as everybody else.

0 (21m 51s):
Oh yeah. Must've been an interesting, I might go to, it's been an interesting year for everyone, but with so much change in that arena, like I saw I was suited, I've done a little bit of commercial over the last couple of years, but not much, but just saying I had, I had tenants that were calling my insane. It's not fair. My landlord say enough to pay fall and do all this other stuff. Even now we have, we've been shut down by the government and things. Not everyone did that. A lot of people were very reasonable, but it must've been an interesting year for that sort of thing because the banks didn't care much. I noticed I don't, I don't remember the bank stopping mortgage payments in any point in time.

2 (22m 26s):
No, not for commercial matters. Not at all they did for residential matters, but not commercial matters. And then that created a difficult situation. So one of the things, so you have the statute and the law, then you had the regulation. One of the things as a mediator is I look at, you have to look at the station of life of the parties. In other words, if it's a big corporation that owns that lease, then there are, you know, they can take a hit instead of it's mom and pop. Like I had a mom and pop who had a motel, they, and they, you know, had a lease with this guy and they lived on that money to pay their rent, their utilities.

2 (23m 10s):
So they needed the money. Yep. Okay. And as opposed to another one where the superannuation, it brought the commercial property. Yes. They're losing money and they depend on that money to pay the mortgage, but how am I going to become homeless? That's correct. Or miss a meal or fail to pay their electricity or what have you. So you look at that, you know, you have to look at all sides and you get the parties to, they get very angry. But the nice thing the law did is it gave you parameters in that it's still going on. It's why it's going to wind up now. Cause job keepers ending, but the cases will be going in the next couple of months. And so I'd probably done about, I'd say almost a hundred of those.

0 (23m 52s):
Yeah, man. It's, it'll be interesting to say when job caper does end, what happens now? Because I mean, part of my role I do is employment. And everyone's talking about the cliff, that's coming with all the benefits now gonna get turned off. So there'll be more disagreement regarding the lease agreements or contracts with suppliers and whatever else might possibly possibly

2 (24m 12s):
Can. So what I heard today, the government, the federal government is going to LA is looking at supplementing tourism, travel areas and that's about it, but it's, but the problem is, is you've got the restaurant tour downstairs that had to close last April, may, you know, it's just recovering, but people aren't going out.

0 (24m 37s):
Yeah. Well, we'll see what happens, brother. Okay. So right. You've got two groups in our, because I took people but say two sides to oppose opposing some it's fair to say. Sure. Okay. So you're in discussion and your bringing about options with positive resolution. Would that be fair to say?

2 (24m 55s):
Absolutely. So, so my role is to help the parties search for positive solutions that can benefit both sides. And what would that look like? So brainstorm, that's one of my role to make suggestions and they can accept it or reject it and it can be in anything it can be, you know, in parenting matters. Yep.

0 (25m 18s):
And that's interesting that you do so many different sides of life. I find that like parenting, I've seen a lot of things that have been very difficult with getting Australians capitals to agree on things and that's a different thing, but then you go into commercial and you go into, I imagine, well, at the, after the halfway Mark, I love a bit of story time. So I'm sure there'll be a few weeds and wacky ones that you can talk about them. But yeah, you certainly cover a lot of bases in that. Is that, is that easy for you to do? Is it a seamless sort of a thing every time you do it, if you like, or

2 (25m 51s):
So I get you get the emotional ones that are, which would be workplace parenting in a state conflict. And then you get the more, the ones that are more commercially based, but can't have emotion attached to it, but not like them, which would be, you know, commercial matters, partnership disputes. They can be acrimonious. You get, so you're dealing with a different, it's a commercial matter. So you're arguing over how much money franchise disputes. I've done a bunch of those they're arguing, you know, franchisor says, there's contract says yet they had to do this and they didn't do it. And they have a th this is why we didn't do it and then becomes a dispute and they could lose the franchise, but the franchisor then would have to find somebody else to run it.

0 (26m 41s):
So they probably don't want to go down path of losing someone that is, want to establish an understanding that things are going to be different. Would it be correct?

2 (26m 50s):
And it worked out and try to keep away from publicity.

0 (26m 54s):
Oh yeah. That'd be, that'd be an interesting one. I'm sure. So yeah. I mean, everything you do will be very private and very, you know,

2 (27m 0s):
It's all confidential. So in other words, why I can tell you stories today? I can't tell you names. I can tell you when or where or how or why. I can't tell you, but I can tell. I can give you

0 (27m 12s):
Stories. Yeah. We'll just be, I find it interesting. I think stories are a great way of explaining how a situation can go sometimes. And you know, it's always interesting to hear on how theories wonderful. Like our memory in the cops went through nine months of the Academy to learn truly scenes. And then my first trip out the sane Yukon, he said, never forget everything you learned. This is where it really happens. And it was never, there's never a plan. I love planes, Timo selling the other day to a business plan. Again, I've done three in my life. They all lasted about a year. Everything changed.

3 (27m 44s):
Yeah. Shoot. Well then you have to amend it and redo it. Yes.

0 (27m 49s):
A living document, Ryan. It's like, Oh God, it's, well, it's had some, like my, it said some twists and turns. So you've got these, you're giving positive options for people to get around these things. Where does it go? Like, do they, now you say this can last for hours and hours and hours. Yes. Would it be fair to say that initially sometimes is, you know, there's a bit of pushback that people aren't, aren't keen to, to look at these options or,

2 (28m 14s):
Well, there, there will be a lot of emotion and involved that they cannot see the, you know, the light in the tunnel because they are absolutely right. So it's it, you know, to me, it would make common sense and logic because I'm an impartial third party. But to them, it doesn't cause they're living it a great one was a mediation. I did a couple of weeks ago in a state dispute where the daughter there, three, four children, three boys and one girl, she was the executor. And she had no clue what she was doing as an executor. And the lawyer said, just go to mediation and work it out.

2 (28m 56s):
So send it to me. And it was like, great.

3 (28m 59s):
Yeah. And they were Italian too. Very angry. Calm. That'd be.

2 (29m 4s):
Yeah. If I have a dollar for every F-bomb I got it's

3 (29m 8s):
Like, and

2 (29m 10s):
Then a one or two of them had the same lawyer who was Italian and he was throwing F bombs in when they got him on the phone. Excellent. Oh yeah. So that was a 10 hour mediation. Got an agreement, got an agreement. They signed up that one of them wouldn't follow it. So they're still in court. Yeah.

0 (29m 28s):
Yeah. Finally, I was going to have a little break from my mind. My second moment a second. I'm going to give a break for a second. I've just got a sponsor there to talk about mate, but I'll get back to us very shortly. Excellent. If you've had yourself an accident at work or in a car or even on private property, make sure you have a chat to crew legal in keeping Queensland crew legal or personal injury lawyers. Very experienced. They're not small firms. So you get very personal service. They're very easy to talk to. So if you need a bit of help, you're not sure which way to go give crew legal, a call, check out their details on the net crew, legal.com that are you. Give me you. Okay. So the Italian crew, that was fun.

0 (30m 9s):
They're still in courts that went well. Right. Okay. So when you say you get a revelation or get an agreement, what does that look like? Does that then become a legal, is that a legal document? Is that an agreement that's set in Stein. What's the jail.

2 (30m 25s):
Okay. So the confidentiality applies in every mediation. So you can greet as something orally, but that doesn't mean anything. It's not legal that's right. Well, right. Because nobody signed it. Yeah. Okay. So, so it's the old adage sign on the dotted line. So as we've gone through, through the day, I, or one of the lawyers have drafted a different kind of agreement, depending on what it is, you know, a parenting plan or a heads of agreement or a contract, and then you pass it around or a consent order and you pass it around. Yes. All the parties decide. And if they do, then what happens is that becomes a contract and like any other contract it's evidence in court.

2 (31m 10s):
Well, didn't you sign that on that day? Why are you not following?

0 (31m 14s):
Yeah. Which part were you not keen on at that point in time?

2 (31m 16s):
Yes, exactly. Because people do get buyer's remorse

0 (31m 21s):
And, and you know, it's this common sense thing you keep talking about. It's uncommon.

2 (31m 29s):
Well, I would be, I'd have to do retail. Yeah. Yeah. You need a job brother. Yeah. People just saying common sense all the time. I know. I mean, if people got it and could actually just look towards working with each other, you know, they'd be able to talk with each other and you know, at worst agreed to disagree, but it would be that common courtesy and civil discourse.

0 (31m 53s):
And it's not from my experience. It's not necessarily that there's actually a problem. It's just that people have decided there's a problem.

2 (32m 2s):
Correct? It can be well, yes and no cause PR problems arise, but because there's a lack of communication. Can I give you an example? Okay. I did a, a mediation several years ago with a medium sized accountancy firm. These two guys who were partners of the firm had known each other since high school. And they were probably in their mid forties. So they'd been together that the wives one was the office manager, the other one would come and go. One of the good accountants was the Rainmaker. So he'd out to play 18 with new big clients and they'd go to the 19th hole and he'd come back at four or five in the afternoon smelling like a brewery.

2 (32m 49s):
And the other accountant was the bean counters. They say, yeah. He could tell you that in your taxes and five years ago on line 62, <inaudible> it says this. Yeah. But don't put them around people. No. Okay. But yeah, to do the paperwork, you're good. And the problem is, is he got resentful of the other partner and there were a few other things because he's out on the, you know, out golfing drinking with the Phyllis. Yeah. That's right. Instead of working

0 (33m 19s):
At a bank

2 (33m 22s):
And then the wives got into it. So what happened is by the time it came to me and th they had a business of about 35 people, if they didn't resolve it, it was going to implode. Wow. And they each would go their own way and people would be fired and some would go with another. So we had to sit down and we had a 10 hour mediation, but the problem is, is they lost the ability to communicate with each other. So I can marriage. They didn't work on it. And then the partners got involved in, it got uglier. And by the time I got in, they weren't talking to each other and they were sending nasty emails.

2 (34m 3s):
It's like, come on guys.

0 (34m 4s):
Yeah. I mean, we're grown up here. What mean after having some struggles and doing whatever. And, and a lot of them are my fault. When you look back on things or the sort of these two things I want to continue, I want to do for this month. I want to remember to be nice. And I don't want to sweat the small stuff, because I think there's a lot of small stuff that destroyed becomes huge things and are necessary. Like I, in an instance there, I mean, you got to put it, you got 35 people in a business. You, I imagine you've got a reasonably successful accounting business from, from that amount of employees. And you've got the two guys at the top arguing, cause one's going out too much. And the other's not in this way. Was there not a discussion there about that?

0 (34m 45s):
Did they ever try and talk to each other and just couldn't or was it all blind?

2 (34m 49s):
I, well, it, they tried, I think they were just tired, I think. Cause they'd been together so many years. I mean, since they were 16 years old, so they'd been together over 25, 30 years and they had lost the plot to communicate and frustration set in and the partners were involved and you know, it just sorta started to break apart just as any relationship does if they're not communicating. So they lost the communication. And luckily somebody knew me and I could sit down with them. We spent like 10 hours that day, but it it's sorry. I forgot your question.

0 (35m 28s):
No, no, no, no. It's just like, you know, the small staff is it can become a big deal out of nothing. And I mean, it doesn't take much like, you know, you know, we're only a snowball stable down here. It becomes a big snowball. If it gets enough momentum on it.

2 (35m 42s):
Oh my God. There, he, or she goes again, look what they're doing. Same stuff another day. And so I call it the vortex. Yep. So, you know, people get caught in that vortex and it's like, you know, it's like what you said your ex partner said to you, Oh God, just when you speak it, irks me, it drives me nuts. And it's like, and that happens. And then they lose communication. And once you lose communication, it just, it's a, if it's a Visier it's just broken apart.

0 (36m 14s):
Yeah. And I think people tunnel vision in, on a single thing. And that single thing becomes so huge. And so, so damaging and it doesn't necessarily have to be, it might be to such a small thing.

2 (36m 27s):
Well, it could be minutia. And so like you said, it's like, Oh God, there he goes again, look, he's doing the, you know, it could be some thing, you know, how you butter your bread or whatever, it doesn't matter.

0 (36m 37s):
Yeah. And it's not living with someone for a long period of time. I mean, if you like, y'all sinking before, like these guys are in business for 25, 30 years together and that's a marriage and you're making these life decisions with each other all the time. And all of a sudden the way that the guy makes his coffee, he's just pacing you off. And that becomes something that they might need mediation for, which is sounds ridiculous. But it makes sense. Like it's a small thing becoming a big thing. Or in this case that he was having what the other guy perceived as all the fun and the other guy wasn't you felt got your drift.

2 (37m 8s):
Exactly. And there were other little, but there are other Niggli points to, you know, yes.

0 (37m 14s):
Well, how'd you go on that one, but

2 (37m 17s):
They got a resolution and I'll tell you what they did. They did because we spent the day, the good part of the first part of the day, talking about communication, how they would communicate.

0 (37m 28s):
Did they figure out that that just hadn't been doing it very well?

2 (37m 31s):
Correct? Yep. And, and they, they they're accountants. So they're very being, you know, very like engineers.

0 (37m 39s):
Did you have to put it in an Excel sheet or to make it like, I don't understand it.

2 (37m 43s):
Right. And, but they were very concise. And what they were able to do is one of the things we allow mediations is you get to say why, it's, why it's an issue. Why is communication an issue for you? Hmm. Well, he does this, that and the other. Okay. And you asked the other party why's communication issue for you? Well, he does this, that and the other. Okay. So what do you think about what he said that you do this as and the other, then what do you think about what he said? So you get him to explore why it's an issue, make as much peace with it as you can. It's not a counseling session, so legal mediation and then move on to Howard.

0 (38m 18s):
We're going, gonna resolve it. So in saying that they may miss, you know, you don't pull too many punches, I suppose. You're not there to be all nice and fluffy. You're there to get a result.

2 (38m 26s):
Well, yes. And now, because when you're in the high emotion things you want to be, I don't, I don't know. It's nice and fluffy or the words, but you to be a calm and empathetic. Yep. So you want to be, and I'll give you an example. I did a parenting mediation a couple of weeks ago and all she wanted to know, and she couldn't deal with talking with him about the children is he was having an affair with her best friend. She didn't know it suddenly. He says, I'm leaving and she was devastated. And she said, I can't go forward. And he tells me why. And so I've had a private session with him and he said, well, he, I asked him, did he know wha what w what the issues were around the children?

2 (39m 12s):
Yeah. She's upset with what I've done. Well, do you think it would help if we talk about that? Yes. Will you do that? I don't want to. I understand you don't want to, but how are we going to resolve this? So he was finally able to realize he, she needed to hear why she didn't like it, what he said. Okay.

0 (39m 32s):
It's interesting because that's sort of a, that's the onus to counseling kind of a session nature, isn't it? That you're doing it. He

2 (39m 39s):
Is, but what it does, it gives her an opportunity to get an answer so she can move forward. And I'm sure not a counselor. I'm not trained as a counselor, but it gives, then the other party can explain why, and then she's not going to like it, but they can make peace with it so they can move on. And that's what happened. And that, that

0 (40m 3s):
Did work out, did it? Yes.

2 (40m 5s):
Yeah. At that point. And then they came back again, a couple months later, it did work out. So it's giving the people fair, dinkum opportunity to express why it's an issue. And it's a wonderful tool.

0 (40m 19s):
Oh man, I dig what you do. And on our main that, because there's so many opportunities there

2 (40m 26s):
That people take to light things up.

0 (40m 30s):
I mean, you say family issues where, you know, you've got a sister or a mother or a father or brother or someone just putting in the daggers all the time and, and just twisting the knife, beat on Nana and this making it worse and worse and worse. Now, I don't know why people do that sort of thing. I think that they should be as often as possible, a clear mind and a desire for

2 (40m 51s):
Calm as

0 (40m 52s):
Best possible, but people don't do that. So you might not dig what you do. I think, I think it's super cool to just blowing sunshine up your ass for a second, but it's not leaving, being a full-time litigator to going into something that I think

2 (41m 8s):
Brings good in the world. I do too, because one of my goals in life is leave the place better than I found it. A hundred percent brother. Yeah. And that's, and so when I, when I, when I've assisted people in resolving the matter and get in an agreement, I walk out, I'm like smiling.

0 (41m 25s):
Yeah. And that would be a really cool thing because you would see people coming full of heightened rage and just wanting to get there. And if they can walk out and they feel better, but they've got, you know, they feel like they've got a win for one of these, or they've got a better understanding of what the situation actually, or they resolved conflict. Yeah. Even if they don't like, so

2 (41m 48s):
A lot of times people will say, especially when you're dealing with money, if neither of you are happy, then it's a good mediation. Got it resolved. I agree with that. Yeah. Because you're not going to get everything you want. I'm not going to get everything I want, but the, how can we work together?

0 (42m 3s):
Get what I call fair day, come as close as we can. That's the thing there. But yeah. I mean, it's a, it's a useful service to have. Cause I find court's very combative and court is about, you know, there will be a decision light down here and nets, you don't get a choice in a particularly, and there's winners and losers. And I'm not saying everyone's a winner in mediation at all, but you know, there's obviously there's some agreement on both sides and that's gotta be a whole lot healthier than the alternative

2 (42m 30s):
It is, especially is. So one of the things I do after a mediation is I follow up. Cool. Hey Ryan, how's it going? Hey Jane, or Joe, how are you doing?

0 (42m 41s):
How did the deal, is it something you'd like to do? I was just something I do myself. Most mediators don't do it. Yep.

2 (42m 47s):
And I pick when and if I can, but most, most of my do. Yeah. Just to see if they're traveling. Okay. Yep. Okay. Most of the time they are.

0 (42m 57s):
Yeah. And you know, I guess that's up to them some of the times, so. Absolutely. Yeah. I think that's always nice. If I like the ability to better drop something. I made, like I get these people and they're talking to me about things that happened four years ago, five years ago. Oh this is just too, man. Let it go. It's done. It's carrying around with you like a friggin anvil.

2 (43m 19s):
Absolutely. That's why I tell people. I wish they would do this. Do more meditation in school. Just have people just sit, just sit and clear your mind. So when you're in a, when you're angry, frustrated, bitter under stress, what have you,

0 (43m 38s):
You can just let it go. Yeah. And I'll just, yeah. I find it interesting thing that people carry stuff around with them, fried yourself. You're given that opportunity in some way, shape or form. And I mean opportunity. Not that they're getting it because you know, you gotta take opportunity. That's part of the deal. That, to be able to let that go. I mean, that's a cool thing, man. So it's a good outcome to get. But my intent what's some weed stuff. What's some, we wanted to go tell us some stories about things you've encountered in your, your career as a macchiato. Sure. There's some wacky ones.

2 (44m 8s):
I'll go to the chocolate and vanilla mediation

0 (44m 11s):
Up. Okay. So

2 (44m 13s):
Parenting matters. So guy calls me, he says I've been referred to you. I want to mediate. Okay. What children. Okay, good. What are their names and ages? So girl, girl, boy. So Levon or girl, boy, girl, 11, nine and six.

0 (44m 29s):
Okay. So I just get basic information

2 (44m 32s):
And then tell him I got a call her, invite her to the process. Yup. And so I call her and Farley a mediator. Okay. G agrees. So I set up my pre-mediation intakes, separate on the telephone. And I start with her, I do the first one with her and I say, so my once I explained the process, then I take a history. And so one of the issues they've been separated for four or five years. And I asked her, do you have a new partner? Yes, I do. Well do you and your partner have children now? Well, okay. Does your partner have children? Yes. He has three. Oh, what are their ages? Eight. Six and three months.

2 (45m 13s):
But wait, you told me three months?

3 (45m 17s):
Yes. Well, this is where it gets. Good. Well, wait a minute

2 (45m 22s):
Told me that you and your partner don't have children. No, he has the children with his wife. Okay. All right.

3 (45m 30s):
Confused. Okay. And he says,

2 (45m 33s):
Well, he was Sri Lankan. His wife was in Sri Lanka. He would he'd come here to work. He got, he was an engineer or something. So they, he got a visa and he was permanent resident or something. And he was going back to see his wife every now and again. And they had a child as in the biblical?

3 (45m 56s):
Yes. So, so he goes back to exactly. She has a kid, he's got the other two kids with

2 (46m 3s):
The mother in this instance. And she says to me, yeah, they're there. And I said, but what do the kids think about that? Oh, they're not bothered. Okay. She says, and also there's two things. I want mediation. Number one. I want to be able to travel around Australia with my children and homeschool. And this isn't about, she's asking this in may the mediation and for the, after the July holiday. Okay. And this is

4 (46m 36s):
For her children with her ex

2 (46m 39s):
W now? Yeah. With her children. But she wants to travel around because Sri Lankan's wife is going to come back in the country and they're going to travel around. So she wants to travel around as one big happy family. Wow. Okay. So I said, well, when she comes back, where will the wife live? Cause she, she was coming in another couple months. Oh, she'll live with us. Right. Okay. So how does that work? Well, she'll have her room and I'll have my room, the children, or have the room. Some of them have to share. And I said, okay, where does dad sleep? Well, he gets a choice

3 (47m 19s):
Wherever you like chocolate or vanilla. It's like, I went. Okay. And so what do you think effect? And I asked

2 (47m 28s):
Her, what do you think the effect is on the children? Oh, they're fine with it. I love it. Okay. Okay.

3 (47m 34s):
Now I, then I go have the,

2 (47m 35s):
I do my intake with Dan and he says it's morally reprehensible. Right? Okay. But I only want care of the child. Custody is called care. I only want care of the boy cause I want to get him in sports. Well, what about your daughters? Oh, I'll see them every other weekend. Like I'm doing now, but I want the boy because he needs to be nurtured. Okay. Not the daughters though. No, the whole thing. Thing's hands be. Oh,

3 (48m 3s):
Oh it is. Oh. And it gets, it

2 (48m 5s):
Gets going. So they couldn't agree at mediation. Yeah.

3 (48m 12s):
What does any of that work?

2 (48m 14s):
That's that's the thing. So what does she do? She buys a caravan and with the Sri Lankan family, they have two caravans and they go off and traveling around Australia. Now the problem is, is if you you're a parent of children, you can't go more than, you know, a hundred, hundred and 50 kilometers without the approval of the other. You can go, but not the children. Yeah. She didn't get that approval. So he files a it's a, it's a recovery order. Get the children back. She flies back to it. She says the judge, he wasn't, you know, they argue and go back and forth.

2 (48m 54s):
And the judge gives her a month to come back. This isn't middle school and she hasn't done anything. She had taken any courses that got certified as a, a whole homeschooling.

0 (49m 7s):
She just decided she was going to I'm doing this. Bye.

2 (49m 9s):
Yeah. Bye. Yes. And so that was one interesting one.

0 (49m 14s):
So there's no that there would never be resolved. I don't imagine

2 (49m 18s):
Last I heard it was going to court. A font of interesting when

0 (49m 22s):
People just cannot see in any way, shape or form that their behavior just is the problem. I've got a guy now that he comes along and he's, he comes to my charity occasionally and my charities about giving people opportunities to create connections in communities and all that stuff. And he can't understand why he's been divorced so many times and why he frustrates people and why he, you know, alienates people over that. And then I would sign it as, you know, if, if everything is going wrong around you, maybe you're the problem. And he just, I just can't say that. And I'll just find that astonishing.

2 (49m 58s):
Oh, it's amazing. And I, I find that a lot now and I find it that they just don't see that I talked to a guy yesterday and at workplace and he said, I have no problem. He was a supervisor. It's all her. Yeah. She has to tow the line on I'm the supervisor. It's like, okay, do you think we should have a talk about it? I'll think about it. But it's like, it's like, Hey, you already decided. Yeah. Well that's the problem. And so the thing is if we can get them to mediation and you can start to listen, because what's going to happen is I've already been told by the CEO that if it doesn't resolve one of them's going.

2 (50m 41s):
Yeah. Yeah. Yeah. I don't know. That's an interesting one.

3 (50m 48s):
And I just, almost like to be a fly on the wall sometimes with some of your stuff and just sit there and go really? Yeah. Really?

2 (50m 55s):
Do you think that yeah. Can I give you another good? Okay. I got one. So at the end of the year, it was a breach of contract. They wanted 2.2 million at the start of the day. It's eight 30 and he offered 400,000. Yeah. 1.8 million off. Okay. We start to widow with a widow, with a widow by four o'clock. They were about 150,000 apart by six 30. They're 50,000 apart. And they're getting tired. So I sent him, we are near a queen street mall. So I King George square city hall in Brisbane. And I said, I want you guys, I told this to one group.

2 (51m 38s):
I want you guys to go out and go get a dinner break. And can you get me a newspaper from King George square that they pass on? Because my wife likes it. Yep. Okay. And then I've talked to them. And so I talked to them and I did the same thing with him. My wife doesn't like the paper. I just want to get him, get him a breath and give me a breath. So we come in and it's about eight o'clock and now we're 10,000 apart and everybody's getting tired. We're close though. Nobody wants to leave. We get 5,000 apart, eight 30. And nobody wants to budge. One of the lawyers starts throwing papers around. I'm believing I'm going on in there. And so I said to one of the clients, so I was only paid for a half day.

2 (52m 23s):
Okay. And this, so this is eight hours more roughly. And I said to him, I said to this guy, what if you waive the 5,000 and he paid my fees, which is roughly half of what the 5,000 give or take. He said, okay. I went into the other room and I said to the guy guy, I've got good news. And I've got bad news. And what's the bad news or what's the good news. He waives the a 5,000 great, what's the good news. You have to pay my additional fees. And he looked at me and he said, only if you give me a deal. And then I said to him, okay, you want to mediate with the mediators?

2 (53m 3s):
What you're tell me? He said, yeah, I do this for

3 (53m 5s):
A living. But yeah, that's right.

2 (53m 7s):
He started laughing. I started laughing. I said, what do you want to pay me half? I said, no.

3 (53m 15s):
And we argy bargy. I knew we were gonna get it done. Yeah. So I think he ended up paying

2 (53m 19s):
Three quarters. So it was like, he got a victory. He got a victory. He got done. They signed the agreement, went home happy. So that fun.

0 (53m 26s):
And that's the thing is, I mean, are now negotiating with them property after years of being a real estate agent, my first deal, this is funny, my first ever in real estate. So I'd come in to the cops. I'd been a few months of not having a job and I'd just kick off. First. My first deal was with a Filipino family and they were buying these house and firstly were to go through, like, they went three times having looked through us and then checked this out and did whatever. And then they made this offer. That was pretty brutal, like correct. My principal goes, Ooh, nice stat enjoy sort of thing. Anyway. And it got to the point I had to go down there for dinner with a family. Cause it's a very, it's, it's just a different cultural sort of thing and several <inaudible> and this sort of trying to woo me and Oh, you know, you know, you're working for us and you know, you should be helping us look at we're feeding you and only, eh, that's fine.

0 (54m 16s):
Long story short, I got the deal done because they said they wanted to ride on lawn mower. That was there, that hadn't worked for years was rusty is all buggery, but that had to swing the deal and these people and the other people, the Ozzy people said, nah, stop them. I'm not doing it because I just had enough. So anyway, we've got this roll out in Longmont hard, which was just a heap of sheets. Like it was nothing involved with it. It was just the principle of the whole thing. And then they were happy. The other guys got to walk away. They sat at the house and I'm sitting there and it was still a great lesson on man. I don't know what people want sometimes, but sometimes it's just a little something it's

2 (54m 56s):
People want to feel like they've got a victory, whether it's actual or perceived. And that's what you do in these things. People want to think they've been heard and they've, and justice has been done. Okay. And sometimes

0 (55m 12s):
The crutches aren't we, we are just, Oh, we are all I'm good at is people. I can't fix cars. I'm terrible. Ham handyman and all that stuff. But I get people and I look at them sometimes and go, you are the hardest work in the world. You guys. Yeah. And it's, there's no need for it. You don't have to be, but it's just the way we're wired sometimes. And I don't get it.

2 (55m 30s):
It is. Sometimes you look at people and they, you know, and I get these people in mediations. They're just very difficult.

0 (55m 39s):
And then I think they are. Yeah, no.

2 (55m 41s):
And they think they're right. And they think that, okay, I'll just take it to court.

0 (55m 46s):
Okay. Thank guy for, did you need your ass handed to you?

2 (55m 50s):
Well, and you can't tell them that and that's okay. They'll find out and then they'll find out, well, gosh, I could have resolved it. Yeah. I have one coming Monday. Multi-million dollar estate. One of the children was left out of the whale and filing for family allowance and they could have settled with that child two years ago at mediation. Wouldn't do it. Wouldn't do it. Now. It's going to go to trial. The estate spent, you know, tens of thousands of dollars wasted,

0 (56m 24s):
Tens of thousands of dollars

2 (56m 25s):
Lawyers, barristers, paperwork, subpoenas allegations that families broken apart.

0 (56m 32s):
Yeah. I remember going to my lawyer at the time and I was really shitty with someone who'd done something in business, in through real estate. And I said, I never saw, I saw him shoot anyone. Sorry. That's right. Let's assume you see, boy was just the principal. And he said, rhino principal can be very, very expensive Mike. And we never did it. W Steven, but it got it.

2 (56m 54s):
It, and it's interesting because when you get these very difficult people and you say, well, you know, it's going to cost you 50,000 to get that extra 20,000 don't care. It's just the principle. And so I don't usually say that. I say to them, what's it going to be? I, I try to get them to acknowledge what it's going to be. Like. Sometimes they'll just say like a guy yesterday, let's just go to court. The judge will hear the truth. And I'm thinking he, it's probably not what you think is the truth, you know? But he's not going to hear that. No.

0 (57m 29s):
And it's when he's at his perception of the truth is not what the judge agrees with. Yes. It's going to come. The castle comes tumbling down.

2 (57m 39s):
Well, that's it. Then he blames the judge. Oh yeah. So like the gentleman, you said that can't keep partners. He doesn't, there's no self-realization that I've got skin in this game. It takes two to conflict.

0 (57m 52s):
100%. And then it's like, all women are decades now. They're not mine. They're just wonderful. And some have wonderful. Some are not in some blanks. You want it from someone else and yeah, but you can't look in the mirror buddy. Look in the mirror. But I mean, as we say it, if people aren't doing it, we're doing it. You will never job. I'd

2 (58m 7s):
Have to do retail. That's it.

0 (58m 10s):
I'm going to come. Have you got any, anything else you want to say or

2 (58m 13s):
Aye. Aye. Aye. Two people that are, are interested. I'm happy to chat with them about it. Can I plug my numbers? Okay. So it's two numbers. My mobile (045) 814-2828 or a one 808 Oh three, nine Oh three. And my websites there's two's w w w dot Brisbane, mediators.com.edu and www.mediationexperts.com.edu.

0 (58m 45s):
Isn't three. W's had decided to get man

2 (58m 49s):
Spit that out

0 (58m 51s):
Is actually easier to say www that's true. It's ridiculous.

2 (58m 55s):
Never thought of that. But one of the things I tell people is nobody likes conflict. Nobody wants to be involved in conflict. Just resolve it as quickly

0 (59m 4s):
As you can be nice. And don't sweat the small

2 (59m 7s):
Stuff. And, and, and the final thing I agree with what you said way at the beginning, two things I try to do, be kind be nice.

0 (59m 16s):
I don't sweat the small stuff. It's just not worth it. Yeah. Life's too short. A hundred percent

2 (59m 20s):
Here for a finite time. I have some fun. Let's

0 (59m 22s):
Enjoy. Let's go to the pub. I was just gonna say that. Yeah, look, thanks. Finally. I've loved having you on buddy. I really appreciate it. I'll put your details up on our Facebook page as well. So people can get in touch with you and say good day, but right. Thanks again for being on nine humble opinions. My pleasure. Thanks Ryan.

1 (59m 38s):
<inaudible>.