The Federal Circuit and Family Court of Australia system expects that people will only file court proceedings when there is no other readily available way to resolve their dispute. For parenting matters, where it is safe to do so, parties must make a genuine effort to resolve their dispute by participating in mediation before they file an application seeking orders. Even once court proceedings are commenced, the court routinely orders that parties attend a conciliation conference in both parenting and property matters before they proceed to final hearing. It is therefore safe to say that mediation is a key feature of the family law system, and we have extensive experience acting for clients in mediations both prior to and after court proceedings have been commenced.
In our experience, the best ways you can prepare for a successful family law mediation are:
1. Be prepared
Don’t come into the mediation without considering the many potential outcomes for the day. Make an ordered list of the things that are most important to you to discuss. Write down what your ideal outcome would be, note what you are willing to make concessions on, and if there are things that you would prefer not to concede. Both parties will need to make concessions on the day – you would not be attending mediation if you could already agree! – so it is also helpful to consider what you think is most important to your ex and how you might each make concessions to come to an agreement.
Most parties come to mediation ready to argue their side of the case. However, actively listening to the other party is where the most progress is usually made. Actively listening to the other party’s points will usually offer you insight into what is most important to them, and therefore what else they may be willing to concede. Responding in a constructive way to issues the other party raises will lead to productive negotiations and pave the road to a resolution.
3. Don’t bring old arguments into the mediation room
Arguing about something that happened in the past will rarely lead to resolution. If there are concerns about past behaviour that legitimately effect the resolution of an issue, they should be discussed in a constructive way. However, bringing up an old sticking point that doesn’t really effect the agreement you are trying to reach won’t be helpful. For example, who ended the relationship is not usually relevant, or if one party was unfaithful during the marriage.
4. Stay focused on the issue at hand
A good mediator will often ask each party at the outset which issues they would like to discuss, and will move the mediation through each issue during the day. It is important to remain present and focus on the issue you are currently discussing. Just because you couldn’t agree on the last issue does not mean you should not reach an agreement on the current issue. Also, don’t try to tally how many issues you think were resolved in your ex’s favour versus your own and try to keep the balance equal. It is likely that you and your ex may disagree on who has ‘won’ an issue and it is likely you have both made concessions. The overall focus should be on coming to a resolution on as many points as you can.
5. Remain calm
Aggressive language and tactics are not likely to lead to constructive negotiations or a good outcome. Although you likely know very well by this point exactly how to press your ex’s buttons, mediation is not the time to get your ex off-side. Consider how likely you would be to make a concession if your ex became aggressive themselves. Remember that the mediator and your ex’s solicitor, if they have one, are likely very experienced and will often be able to see through any tactics or game-playing. It would be a shame to lose the opportunity (and money spent) on mediation if either the mediator or the other party terminated the mediation due to inappropriate behaviour.
6. Don’t sweat the small stuff
We have seen near-settled matters fall apart at the last minute when one party won’t concede the last $5,000 in a property matter, or the last hour on a Sunday afternoon in a parenting matter. Too often parties can lose sight of the progress they have made throughout the day and become fixated on a small point at the tail end of the mediation, focusing too much on what they have conceded rather than what they have won.
7. Clear your day
If you can, take the day off work and arrange for someone else to care for the children. Mediations often start at 9am, and you don’t want to be late or miss the opportunity to settle into the venue because you got stuck in rush hour traffic coming from school. Although many half-day mediations are scheduled to finish at 1pm or 2pm, if you are close to a final resolution the mediator may be able to continue discussions for a little longer to get it over the line. You don’t want to miss out on finalising your matter because you had to dash to work or after-school pick up.
8. Don’t come hungry
We have seen too many clients turn up to mediation on nothing but a cup of coffee, and with no food to sustain them throughout the day. Although you may feel nervous and like you don’t want to eat on the morning, it is important that you have fuelled your body for what is likely to be a very draining day. Even though lunch breaks are scheduled for full-day mediations, lunch hours can often be consumed going over potential settlement options with your lawyer so that there’s little time left to buy lunch. Resolution is very unlikely to occur when either party is ‘hangry’.