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How To Get The Most Out Of Mediation

Mediation, also known as Family Dispute Resolution, is a common way for parties to resolve disputes relating to parenting and property matters and there are many benefits to it.

Mediation is cost-effective, timely, informal,  and confidential.

You also have the benefit of a Family Dispute Resolution Practitioner (Mediator) to guide you through the process. The Mediator remains impartial and does not give advice but can offer some perspective and reality if you hit a wall in your negotiations. The Mediator encourages both parties to consider a range of options and keeps the conversations focused on the issues in dispute rather than engaging in unproductive blame games.

The thought of being in mediation with your ex-partner can be overwhelming. It is normal to feel this way, and there are a variety of ways mediation can be conducted to accommodate different needs. The reality is that it’s hard to tell how things will pan out in mediation. However, there are some things that you can do to get the best out of the mediation process beforehand so you can feel more confident when the time comes.

Top Things To Do Before Mediation

1. Seek Legal advice.

Google seems to be our first point of call for any and all information. However, whilst it might be great for a casserole recipe, legal advice should always come from a qualified legal practitioner.  In order to set realistic expectations for yourself, it is important that you have a good idea about what a judge might say about your situation if the matter goes to court.  Legal advice can help you be more confident that you’re not dismissing reasonable options or accepting solutions that a judge would say are not suitable.  If you don’t feel comfortable with the legal advice you have been given, then seek a second opinion.

2. Be realistic about what you can do.

When considering the outcome you want, it is important to view it from all angles. When making arrangements for children, consider long term outcomes, the practicality of scheduling and, meeting the everyday demands. If you are negotiating property, consider whether you can afford certain options, you may want to talk to a financial planner beforehand to understand your limitations.

3. Have perspective.

Arguing over the number of days/nights or percentages is draining and ultimately futile. Consider the outcome from your children’s perspective or in the form of utility/ practicality. There is no point arguing over who keeps the family home if neither of you can afford to meet the mortgage repayments. Likewise, if there are no significant reasons why a shared child custody arrangement cannot be in place, be consider the benefit of your children spending equal time with both parents.

4. Understand the Financial Costs.

Before you go to mediation, have a good understanding of the costs involved if the matter proceeds to court. Most simple matters cost anywhere from $2,700 to over $100,000, depending on how each party approaches the matter.

This is money much better spent on your children or towards the next chapter of your lives.

5. Communication.

One of the biggest reasons why people come to mediation is because somewhere along the line communication has broken down.  Prior to mediation, reflect on the past communication with your ex.  Are there areas you could improve on?  Poor communication often leads to conflict. Whilst understanding that we cannot control the actions of others is there anything you can do to improve communication with your ex?

Your communication in mediation could be assisted with the following and you might like to incorporate some of this into how you communicate going forward:

  • Be attentive: Try and listen before responding and take turns speaking. Imagine you are speaking with a work colleague or someone else you respect.
  • Listen actively: Rephrase what you heard to ensure you understood what your ex meant and vice-versa.
  • Share intentions: When approaching a complicated topic, firstly share your intentions. “If we sell the property, we will both benefit from the profit we will make and can each start fresh”.  When you share positive intentions, you will help your ex understand that you are initiating the conversation to solve problems, not to criticize or complain.
  • Use “I” Statements: Using “I” statements creates accountability for your own feelings as opposed to “you” statements which implies blames.  For example, “I get annoyed when you are late to pick up the kids” as opposed to “you’re unreliable and you annoy me” which can only invite resentment and defensiveness.
  • Agree with the truth: Own your mistakes! This can increase credibility and diffuses the situation.
  • Praise where appropriate: Everyone likes to be appreciated occasionally; praising your ex on positive things where warranted is powerful and can enhance communication and increase the likelihood of reaching an agreement.

6. Self-Care.

To ensure you’re in the best mindset for mediation, take some time out leading up to the mediation.  Self-care is vital in reducing stress and anxiety.

Once you’re in the mediation, it is normal to feel anxious and/or nervous about how the session will go.  If you feel overwhelmed, you can ask the Mediator for a break, speak privately to the Mediator or your lawyer (if you have one) or request to continue the session if not already as a shuttle mediation.  Shuttle mediation is where both parties are in separate rooms or telephone lines/online breakout rooms (where applicable) and the mediation progresses separately.  The Mediator is better equipped to manage the process if you are in a space that you feel safe and comfortable.  If you feel negotiations have gone as far as they can on the day, you can request to come back for another session to continue the conversation (if both parties and the Mediator agree).

Author:

Christian Bolog

Christian Bolog

Director | Head of Commercial Law

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