Should I attend Family Law mediation? And how to get the best result if you do.

by CLW Family Lawyers | Last Updated: Jul 2, 2020 | Family Court Litigation, Parenting & Child Custody, Splitting the Assets

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Separating couples have a plethora of issues to sort out; who gets what, where to live, when the kids stay with each parent, who pays the mortgage in the meantime….. the list can be long and complicated. It can feel like getting to any sort of resolution is a game of strategic moves and countermoves. However, reaching an agreement does not have to be combative.

What is mediation?

Family law mediation (or Family Dispute Resolution) is conducted by a Family Dispute Resolution Practitioner (FDRP) who is an objective facilitator trained in mediation and specialises in family disputes. The FDRP will facilitate communication and problem solving, provide a safe environment and address any imbalance of power that may be present.

Mediation can occur face-to-face via a ’round table conference’, by shuttle mediation, or by a combination of both. If you have concerns about family violence or your ability to express your position freely or without intimidation, then shuttle mediation may be appropriate. It involves the parties being in separate rooms with the FDRP going between rooms to speak to the parties in turn and relay the other party’s point of view, offer advice on how to resolve issues and convey offers and counteroffers as appropriate.

Everything that is said within the context of mediation is confidential and cannot be repeated or used as evidence in any subsequent court proceedings if the matter does not settle. You can attend mediation with or without your lawyer. The advantage of attending with your lawyer is that they are specialist negotiators who act in your best interests to achieve the best result possible for you in your individual circumstances. Additionally, they provide legal advice on the spot, negotiate for you and speak for you if needed and draft legally binding orders on the day if agreement is reached.

Benefits of mediation

There are numerous advantages of attending mediation, with the main benefits being:

  • It is far more cost-effective to mediate rather than to be engaged in lengthy court proceedings;
  • You are directly involved in negotiating your own agreement rather than having an outcome imposed on you by a judge;
  • The mediator may be able to assist in exploring alternative solutions that have not been identified by the parties, or ones that may not be possible through the court process;
  • It is more likely that the parties can establish a positive relationship after mediation than after litigation; and
  • Even if mediation is unsuccessful, given it is confidential and generally only takes half to one day to complete, you have not sacrificed any legal rights or caused any significant delay in any concurrent legal proceedings.

Top ten tips for mediation

After deciding to proceed with mediation, it is vital that you get the most out of the process. The following practical tips and considerations will help ensure you achieve the best possible outcome from your family law mediation.

  1. Prepare.

While your solicitor will prepare your matter a legal sense, you should honestly and realistically consider the following:

  • What are your needs, goals and aims?
  • What do you think the needs, goals and aims of your partner are? and
  • Can you satisfy the needs and goals of your partner while also satisfying your own?
  1. Understand your options.

What are the alternatives available to you if agreement is not reached at mediation? Make sure you discuss this with your lawyer prior to mediation and have a clear understanding of your options, particularly the cost and duration of alternative processes. If you don’t consider this first, you may reject various options at mediation or accept an offer that is worse than what you could achieve elsewhere.

  1. Listen

Successful negotiation is about listening so as to understand what the other person’s wants, needs and motivations are. You may be able to provide for some of those without compromising your own.

  1. Consider all offers.

It is better to think of offers as possible options. First ask if the other person thinks that offer is fair, and if so why, or what information they are basing the offer on, rather than simply rejecting the offer. This approach enables you to:

  • learn about the needs of the other person;
  • gain concessions without the need for you to make a counteroffer;
  • uncover the other person’s motivations which can guide later processes if mediation is unsuccessful; and
  • reduce the number of topics in dispute later if a full resolution cannot be reached.
  1. Understand your own offer.

Carefully think about why you are making the offer you are presenting and considering how to best explain those reasons. Articulating your reasoning with your offer ensures that the other person hears why they should consider it. If they don’t accept the offer, the mediator can ask what problem they see with it and how you might be able to vary it to make it suitable for them.

  1. Avoid “take it or leave it” offers.

These offers and ‘final’ offers are generally received as a threat and can cause the other person to get defensive. It often leads to the other person rejecting the offer before they have properly considered it and shutting down further negotiations.

  1. Avoid venting.

Particularly if joint sessions are held, explain how you feel but try to avoid acting emotionally. While there is value in expressing how you feel and why, as well as trying to understand the same about the other party, acting emotionally is unhelpful and generally leads to you making poor decisions and the other person shutting down.

  1. Don’t attack the other person.

Negotiation is about persuasion; not about being right. It is normal for both parties to have different views about the same issue. Providing the other party with new information that might change their view will be more helpful to you in achieving a good outcome than criticising the view or actions of the other party. Finding any common ground leads to persuasion, not finding complaint.

  1. Consider the long term.

Issues you currently feel very strongly about right now may not seem so important to you in 6 months or a number of years down the track. Imagine how you will feel a year after the dispute is resolved and the proposed agreement has been implemented. Also picture what it might be like 2 years down the track if you are in the alternative, still involved in court proceedings.  

  1. Remember to think outside the box.

Money is often not the most important thing for people. Things like remaining in the family house, going back to study, moving interstate, retaining control of a family business, or ensuring the children remain in their current schools are examples of issues that can often be more important to a party than money.

The experienced and compassionate Family Law team at Clinch Long Woodbridge will assist you with preparing for mediation; and as skilled negotiators, will ensure that you are supported and represented throughout the mediation process.  

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