Collaboration and Mediation with the Unwilling: “Bringing the Horse to Water”

As editor of the Blog for November, I have invited ‘pracademics’ and leaders in the field of ADR to contribute a blogpost to share the interesting work they are doing.

Our second guest is Marguerite Picard who developed the MELCA Method – a collaborative approach to Family Dispute Resolution. Marguerite is an Accredited Family Law Specialist who teaches collaborative practice, and presents in Australia and internationally. She is a member of the international and federal collaborative practice associations (IACP & AACP) and president of the Victorian Association of Collaborative Professionals.

I invited Marguerite to write a piece about her work in Collaborative Practice.

Over to you, Marguerite…

horse Marguerite

By Marguerite Picard

Well-meaning lawyers everywhere are familiar with the game of chasing ex-spouses round and round, to bring them to the negotiating table to reach a settlement. It is frustrating and costly.

An ex-spouse might be afraid because of issues of power, control and violence, or they may not have had the support or the time to move towards accepting the end of the relationship. There are many other reasons why people dread the thought of any form of divorce negotiations. Working out practical arrangements at the end of a marriage or relationship isn’t something anyone looks forward to. We can all understand these realities.

However, there are very good reasons for people to engage in self-determined conversations about arrangements for their children and their property after separation, because the research tells us that people who make their own decisions, with or without facilitation, are overwhelmingly the happiest with the outcomes. Perhaps, if people recognised that reality, they would not run the risk of other people making decisions for them, as a result of their refusal to have sensible and early conversations.

The 2018 Report of the Family Court tells us that 20,000 applications are issued in the court each year. As it happens that number represents only some 30% of separating couples.[1]. It seems that the majority of couples know that a court is not the place to be, although how much of that is about being priced out of legal services is unknown.

There has been a decrease in the number of court applications for children’s matters since 2006, which reflects the establishment of Family Resolution Centres. It has been shown that 73.6% of couples show high levels of satisfaction with this form of mediation. [2]

Of those who have no assistance with negotiations about children’s living arrangements, 89% are satisfied with the arrangements they make. [3]

It is property matters that now dominate the caseload of the Family Court, which is due mainly to the Court gaining jurisdiction over de facto property matters in 2009 (Victoria).  It is interesting and telling that people find it easier to co-operate about their children than they do about their money.

[1] Kaspiew, Moloney, Dunstan and De Maio: ‘Family Law Court Filings 2004-5 and 2012-13’ (2015).

[2] Kaspiew, Gray, Weston, Moloney, Hand & Qu: ‘The Australian Institute of Family Studies Evaluation of the 2006 Family Law Reforms: Key findings’ (2009).

[3] Kaspiew, Gray, Weston, Moloney, Hand & Qu: ‘The Australian Institute of Family Studies Evaluation of the 2006 Family Law Reforms: Key findings’ (2009).


If you would like to contact Marguerite or find out more about Collaborative Practice, please visit her website.


1 thought on “Collaboration and Mediation with the Unwilling: “Bringing the Horse to Water”

  1. An interesting point and a point well made. This reinforces my view that mediation (or at least pre-action attempts to resolve the dispute) should be compulsory before court proceedings are commenced. Getting the horse to water may be easier if we abandon the myth that mediation must be a single, four hour session in which a final decision is made whether to settle or not settle. As the separation issues that are identified in this post make clear, the process of separation can be time consuming and difficult. There is no reason why these issues cannot be approached in a considered way over several mediation sessions if that is helpful. Congratulations on a thoughtful blog post.


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