16 Best Expert Family Law Mediation Tips.

Thinking about family law mediation and searching for mediation tips?  Or perhaps you’re embarking on family law litigation and need to comply with pre-action procedures which include family law mediation?  Here are our top tips for getting the most out of mediation.

What exactly is family law mediation?

Family law mediation is a relatively inexpensive, confidential process where parties in dispute are helped by a trained, neutral person to reach a negotiated agreement.  All issues relating to parenting or property settlement can be sorted out during mediation.  Even when matters are not able to be fully resolved, they can usually be at least partially resolved, which still helps reduce the time, cost, and difficulty of further negotiations or litigation.

Think of family law mediation as your best opportunity to resolve your dispute before you get mired in a litigation process.  And if its likely you are heading to court, remember that attempted dispute resolution is a necessary part of the process in any case.  That’s because by law, it’s mostly compulsory to attempt dispute resolution before applications can be made to a court, both for property and for parenting matters.

Family Dispute Resolution (FDR) is a specialised form of family law mediation that may be required for parenting matters, but can also include property settlement matters.  FDR practitioners are accredited and trained to work specifically in the family law mediation environment.

So, cutting to the chase, here are our top 16 tips for getting the best result from your mediation.

1. Family law mediation tips: do your prep

• Your family law mediator will let you know what will be required prior to and on the day of mediation.  They will also have pre-mediation meetings with you and your ex, which are private and confidential and are designed to ensure you are prepared for the mediation.
• But generally speaking, in the lead-up to your mediation, it’s wise to gather up all your documents and ensure you have a full understanding of your assets and liabilities.
• Get your case in as good shape as you can.  This means knowing what you regard as a fair split and making sure all the points you make in your case are supported by documentation wherever possible.  Think about a likely range of outcomes and your best and worst-case scenarios.  Consider what a good outcome of the mediation looks like to you.  Understand the weaknesses of your case, and instead, focus on the strengths of your case.
• Figure out what you actually want from the mediator.  Do you need their input on what they think is a fair settlement?  Do you simply need help structuring a settlement?
• Prepare your “mediation statement,” which summarises your position.  You might also like to develop some draft proposals in advance; however, remember that mediation is a creative process, and you may well end up with completely different proposals.

2. Engage a family lawyer before mediation?

It’s a very good idea to see a family lawyer before you attend mediation to ensure you are fully informed of all your legal rights, protections, and obligations and the likely range of outcomes.  The more complex your matter is, the more important it is.  Similarly, if there is any imbalance of power between parties, you’ll find a lawyer very helpful.  Here are more reasons why it’s a good idea.

3. Work out your priorities

What’s important to you, and what do you want to achieve through the mediation?  What are the most important issues for you relating to your parenting and property matters?

4. Break the dispute down

Make the dispute more manageable by breaking it down into elements.  You might find you can compromise on some elements but not others.

5. Understand the need for compromise

Mediation will be over very quickly if either you or your ex are not prepared to concede anything at all.  Mediation has the aim of settling the case, not creating a winner and a loser.  Remember that if you were able to get everything you wanted agreed to by your ex, you probably wouldn’t be in mediation.

6. Be honest with your mediator

Level with the mediator.  If the mediator feels your position is reasonable, they can then work with you to try and achieve that outcome.  If they think your position is unreasonable, they’ll give you their honest evaluation and settlement recommendation.  The more you share with them, the more effective they will be.

7. Don’t expect the mediator to make decisions for you

The mediator is independent and must remain impartial at all times so they will not be able to provide you with independent legal advice.  Only a family lawyer can do this.

8. Never bring surprises to the table

This will only delay you reaching a settlement.  A “surprise” may not even be deliberate and intentional – perhaps there was a lack of clarity or lack of information disclosed.  But wherever something completely unexpected arises in mediation, it’s likely to delay the whole process.

9. Consider making the first offer

Not only is it a sign you are serious about reaching an agreement, but if your offer is reasonable and the mediator comprehensively explains it to your ex, it makes it more likely you’ll get a reasonable counter-offer.

10. Never lie or try to mislead

It’s said that family law mediation happens “in the shadow of the court”, so you bear a duty to provide full and frank disclosure, just the same as if you were going through court.  If you end up making an agreement reached in mediation legally binding, but it’s found to be based on false or deceptive information, the agreement may well be rendered worthless, making everything a complete waste of time.

What’s more, not only is it mandated that you be truthful, but the entire process of mediation relies on building trust between parties.  Don’t jeopardise things by being shady.

11. Manage your emotions

The aim of the game is to resolve your dispute, so inflammatory language, aggression, or game-playing have no place in mediation.  Do your best to be professional and business-like.

All mediators understand that this can be a highly emotional time for you.  They are trained to recognise when you might need to take a break or when tensions between parties are threatening to flare, and they have skills to help manage situations.  It will, however, also be helpful if you are able to learn some calming techniques that work for you.  Consider seeing a counselor to help you through this difficult time in your life.

12. Remember, you don’t have to settle at mediation

Don’t feel pressured into accepting a resolution that you aren’t happy with.  Mediation is not a trial, outcomes are not binding, and there will be no judgment handed down at the end of the day.

13. Don’t expect mediation to be completed in one session

Mediation can take a full day, or it may take several sessions across several days.  This is especially the case when it comes to Family Dispute Resolution, and it really depends on the complexity of your matter.  If your dispute involves both parenting and property matters, it’s often the practice that there’ll first be a mediation session for parenting issues, with an interim parenting agreement constructed as a priority.  After this, the mediator will help you sort out property settlement issues.  For parenting issues, mediation sessions can occur as often as needed, ideally until an agreement is reached.

14. Try a provisional agreement

You might find your mediator encourages you to try a parenting agreement for a certain time period before you each commit to it.  A trial period with a trial agreement can be a great way to progress the matter and also find out if things will work as intended.

15. Document any agreements reached in mediation

If you and your ex reach an agreement by the end of mediation, make sure to write out all the key terms of your agreement and that each signs it before people finish up for the day.  All key matters should be summarised.  It might help to prepare a draft in advance.

16. Be safe

If there are any safety issues, make sure you let your mediator know in your intake consult.  You may opt for “shuttle” mediation, where you and your ex remain in different rooms while the mediator spends time with you separately.  With the agreement of both parties, you might also be able to have a family member or friend there as a support.  Your mediator will help you arrange this.

How to find a Family Dispute Resolution practitioner or service for mediation

Familyrelationships.gov.au can provide this information:

• To find a government-funded service, call the Family Relationship Advice Line on 1800 050 321 or use the Find Local Help search to look for a Family Relationship Centre, Family Dispute Resolution service, or a Regional Family Dispute Resolution service near you.
• To find a private Family Dispute Resolution practitioner, search the Family Dispute Resolution Register. Information about private provider’s costs can also be provided through the Register.

For family law help, call Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice, please contact Alliance Family Law.