Some edited extracts of the podcast appear below:

Jennifer:

Shelby, can you explain your business name? Why Divorce done Differently?

Shelby:

I was a family lawyer for many years and effectively got to the point where I wanted to try and do something a little bit differently but keep my, I guess handy and the family go space and I was talking to my mom about what I could do and I had been mediating for a number of years. Anyway, the next day I turned up at her place for a cup of tea and she had come up with the name, divorce done differently and drawn my little logo. So yeah. And then the thoughts about how I was going to structure the business came from that.

Jennifer:

So you are, I think you call yourself a reformed family lawyer.

Shelby:

Yes, I still hold my practising certificate. I don’t do any legal work at all anymore. But I work very closely with a lot of family lawyers.

Jennifer:

So you work predominantly as a mediator and also in the collaborative divorce process as a coach?

Shelby:

That’s right. And as a parenting coordinator.

Jennifer:

So I imagine that you have been really busy recently dealing probably more with parenting matters and families rather than property settlements.

Shelby:

I think probably like all family lawyers, there has been a huge influx of calls and inquiries from people that have either got parenting arrangements in place and they’re not sure how to manage them with the COVID19 restrictions, or they semi-way through a property settlement and they were worried about the impact of fluctuations in valuations,  earnings, having a job all of those things. So a lot of fear sitting in behind for people and a lot of worries. Yes, it’s been a busy time for us all.

Jennifer:

What I’d really like to focus on are the issues that you’re finding families are experiencing and they’re coming to you to talk about in terms of parenting and the creative solutions that people might be coming up with.

Shelby:

I would say too Jennifer that in the last three weeks that has shifted as well, as the government has made various announcements around expectations of people’s behaviour and conduct, work requirements, etc. But primarily people are coming about safety and the security of the children. And what I mean by that is really from a health aspect, how are they managing who each parent comes into contact with, what are their expectations around what activities people are doing and who is coming and going from their respective homes and also changeover. So if changeovers have previously not been happening either from each other’s homes but from school or public place, how they manage all of that.

Jennifer:

So it’s really coming down to a safety and health issue.

Shelby:

Yes. And one of my top tips would be to try and get an understanding of where the other parent is sitting. What are they worried about? Can you talk through what your expectations are or what you’re actually doing? I’ve had clients that are asking for medical certificates for testing of COVID19, and once we actually talk through what it is that they’re worried about, where I would try to overcome that input, I guess arrangements in place that manage those worries and allow children to see their parents.

Jennifer:

It’s interesting because I’m a mediator as well and a parenting coordinator as you know, and these are different issues, but they still seem to have the same underlying issue underneath them, which is a lack of knowledge and fear. What I find in mediations and parenting coordination as well, is that sometimes people just need more information and, and what presents as  “I don’t want this to happen.  I don’t want the kids to do X, Y, Z for instance. Or go to such and such’s house” when you really drill down as to what’s going on, it’s about needing more information about what’s actually happening and going on. And I know that something that I’ve shared with clients when they have these exchanges and, and you get to this issue is his – just share with the other parent what you would want to know if it was you.

Shelby:

I think that’s key what you’ve just said it and every family that I work with, if we can get the communication right regardless of COVID19 if we can get that right, we’re setting a platform for them for success because issues will arise in life, especially if you’ve got small children as they progress through the next five, 10, 15 years,  you are going to have to communicate, find some way that you can share information with each other that meets the needs that you each have. I often talk to families around structuring their communication and I know that seems a little artificial but if you’ve got that structure and each of you comply with it, then you will share the information that you each need.

So talking around whether it’s a weekly email, whether it’s using some form of parenting app, whether it’s a telephone call or a video link up, just making sure you’ve got structure to that. What are the areas that you need information on? Is it health? Is it schooling, home-schooling? How are we managing it? Is it medical care,  extracurricular, all of those things. And if you can keep that structure, and I encourage my clients to use dot points so that we don’t get into this war and peace banter. And a really helpful tip that came out of actually the parenting coordination training for me was using the concept of For your information, So FYI, I’m sharing this with you. I don’t need any feedback, just dot point information and then a concept of what I call R&R. I need you to reply to it.  Be really cautious and realistic around the expectations of timeframe.

Jennifer:

Yes. I think the timeframes are really important. People can get quite frustrated if they’re not getting a response within a timeframe they would respect. But if they’ve never agreed on a time frame, then what is it and what one person considers reasonable. You can’t assume the other person’s on the same page. I actually use the same technique with my clients, the FYI and R&R. One thing that I add to it, and it also came from the parenting coordination, is that once you’ve got the response, you have to accept it and move on. You can’t keep going back and asking for the same thing again and again and hoping for a different response.

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Shelby:

One of the other things, typically in the space that we work in with mediations or collaborative work is that usually you set a meeting time aside, whether that’s half a day a day a couple of hours. What I’m finding with a lot of the families I’m working with that they’re preferring just at this time of significant change and uncertainty that they are checking in with me once a week or once a fortnight for an hour. We’re setting a time to discuss topics that we haven’t been able to agree on. So it’s just a forum for then to facilitate a, hopefully a fairly constructive conversation.  We’re changing the way we work.

Jennifer:

I can imagine that a whole day mediation by video would be absolutely exhausting for everyone. Even a half day.

Shelby:

Yes, it’s exhausting when you’re having to watch different people and screens, it is exhausting. So be mindful of that when you’re talking to others, when you’re talking to each other and when you’re trying to structure up ways to, you know, have a meeting, just think about what works for you and what might work for the other parent.

Jennifer: There’s a lot of people having to work from home at the moment and also have kids at home. So to try to carve out a three hour meeting chunk would be really, really hard. I’m just wondering if you’ve had any families that have had challenges around that and how they might have managed it?

Shelby:

We sure have. I think most people at the moment working from home, either one parent or both, and I’m actually working with a couple of families where both parents are living under the one roof and they’ve separated and they are trying to resolve things. So we’re working very carefully with them around what are the needs of the family, are there young children? Are both parents able to have what I call semi-privacy because I think historically we’ve all worked in a space where children would never be present during a meeting of some sorts unless they were, you know, very, very, very small babies. Now we’re having to be creative around how can we set the children up in the home with activities. Is it that the parent can be upstairs or the back room? Is it that we can have video conference with the acknowledgement that children may come into the room?

If they do come into the room, we will all stop talking and allow that parent to break.

I’m also talking to parents that are under the one roof about how can you share that load and one of you go into the car?  I know I used to say go to the beach now you can’t even go to the beach. But being really creative about how can we give semi-privacy to each parents and keeping the meetings short and structured to the point where if they need to end because of a child, we all agree to that. If a parent needs a break to go and set a child up again, we agree to that. If it is that the parent with the child, we’ll agree to set themselves up as much as they can have snacks available, get creative. It’s ok for children to watch TV or an iPad for a little bit. Let them play those sorts of things. So being really listening I guess to what the family needs to enable the meeting to take place.

Jennifer:

And I think flexibility is a word that you just said and that’s really important to us. Not just for meetings, but also for the arrangements that people are going to make during this time. We have no idea how long our lockdown, is going to go on.  What’s put in place for them now, may need to change. It may be people need to change the structure of their arrangements and that maybe instead of having changeover on a Friday, we’re going to do it on a Wednesday and then each parent gets a portion of the working week. It’s not changing the amount of time, but being flexible so the kids get a break and the parents get a break. Everybody gets the weekend in between. And I think being flexible and creative will really help people get through this rather than being rigid and saying, well, that’s what the orders say. That’s what our parenting plan says. Maybe there’s a different way we could do this so that it’s easier for everyone?

Shelby:

I think that’s absolutely right Jennifer. And also people who have previously relied on whether it’s daycare, whether it’s grandparents, whether it’s third party care, is such as an au pair or a nanny or a neighbour, those restrictions now are impacting parenting arrangements. And so families are having to reassess each of their needs and how they’re going to make that work without the assistance potentially of third parties. So I think that’s really helpful to reassess it from as parents, our needs. I think if you can talk to your children around your expectations and really allow them to talk to you have family meetings, have a dinner table conversation and then share those with each other as parents.

Jennifer:

I think having that time where we are off our devices and we were not watching the news and we’re focused on the children because we’re asking them at the moment to just be absent. There needs to be some time away from all of that for the children. I’ve heard some people with stories of kids acting off of it and when they stopped and reflected, they realised it was because they were on their electronic devices all day working and the kids were on the electronic devices and they weren’t getting any attention. And if we know one thing from the 20 plus years of family law and we’ve each been doing, it’s that when kids don’t get positive attention, they’ll go for any kind of attention and they’ll act up and they’ll misbehave because that’s a way of getting attention.

Jennifer:

You mentioned before that you were working with a couple who are separated under the one roof and it occurred to me that the longer this situation goes on it’s,  if there’s already issues it can exacerbate those. There might be people who are worried about how do they, how do they separate, what do they do? Do they have to wait till the end of lockdown?

I thought that the collaborative process might be helpful for those people who realise this is not working, but staying together for the sake of the kids whilst you’re in lockdown and not having a conversation about it could actually make the situation worse. So wondered if you could offer some thoughts around how using collaborative practice to transition through a separation under the one roof, when you’re actually just separating whilst you’re in this isolation situation.

Shelby:

So I think for your listeners,  a really brief explanation of collaborative.  It’s an out of court process where we form a team to support the family, to transition through the separation and then into what I call two family units. When I say we form a team, there are expert family lawyers involved that specifically have trained in collaborative law. You may have someone like me who is called a coach or a communication specialist. You may have financial professionals assisting. You might have child experts assisting. So whatever that family needs at that time, we form the team to help them through.

I guess the other pertinent component of the collaborative process is, we’re looking at what it is that each member of that family need and how do we get outcomes that meet those needs. Whereas I guess in a much more traditional family law approach, we would be looking at what does the law say and what is the likely range of outcome for this family. We in the collaborative process work the other way. We ask the family what it is that they are worried about, what’s keeping them up at night, what’s important to them, what do they value, what do they want their family unit to look like in years to come? And then as a team, including the members of that family (not the children) we work to achieve those outcomes.

Jennifer:

I practice as a collaborative family lawyer and I think it’s important to really highlight that, my job as a member of that team is to advocate for my client and make sure that I help my client articulate their needs. I also give advice about the law though because at the end of the day we don’t ignore the law. It’s not a warm and fuzzy process where we sit around holding hands virtually singing kumbaya. The settlement still needs to be something that either a court would be comfortable as a consent order or that the lawyer feels comfortable signing off on and legally binding.

Shelby:

That’s absolutely right. It’s not a process where everybody’s just sitting calmly. Let’s be real. When you are separating emotions are high. The job of the team is, and my job as the neutral coach is to manage the emotions and give space for everyone to have a voice. Collaborative is a balance between advocacy and the needs of the client.  So you absolutely have the opportunity to have your lawyer and your lawyer is there for a purpose. The lawyer is there to give you advice, walk you through the process. reality test, proposals to come up with options around how we might resolve it.

Jennifer:

As a collaborative lawyer,  in that process I behave very differently from how I would in a litigation matter. One of the fundamental principles of collaborative is that everybody’s making commitment that we’re not going to court and signing off on that as a contract. So for me as a lawyer, my job is to work with my client and the other party and with the team to help these parties reach an agreement that is legally binding. That’s my job, and all the things that I need to do to help facilitate that. It’s not to try to rake mud off about the other person. It’s not to prepare for court. I’m not a gladiator in that scenario at all. I’m there to understand that these parties have often have children. They might not be young children, they might be adult children, but even adult children really need their parents to get along.

I use the example of imagine your children’s twenty-first birthdays, their weddings, your grandchildren. What do you want those occasions to look like? Do you want to be the parents who when the guest list is being drawn up, the kids go, Oh no, I, we have to have mum OR dad – they can both be there or they can’t sit at the same table. For me it’s a process that means it’s far more likely that those things will go smoothly in the future because it’s about preserving relationships. I guess that’s where I was coming at with the separation under the one roof that, because it’s a different process, that might be an easier way for people to navigate a separation during these times.

Shelby:

Right! I’m thinking of the family that I gave the example of living under the one roof and as issues are arising, the team of professionals, both of the lawyers or the parents are reaching out to me saying “this issue has arisen for us, we need to deal with it.” That team is able to call a meeting and at the moment it’s via zoom so we’re calling a meeting within a number of days. Typically we’re setting some time aside, we’re setting the family up that are managing children in the background and we’re able to work through that issue as it arises rather than a war of correspondence or big delays. I think we can all be in agreement at the moment. If you are looking for court dates, unless there is absolute urgency, you’ll just being pushed back. So we’ve got to find ways to work for families.

Jennifer:

Absolutely.