What to expect
Mediation is the process where a mediator (usually an experienced family lawyer, barrister or former Judge) assists people in dispute to negotiate a mutually satisfactory resolution and avoid Court proceedings. In Family Law disputes the process is called “Family Dispute Resolution” (FDR) and mediators are called Family Dispute Resolution Practitioners (FDRP) but in this article we use the terms “mediation” and “mediator”.
It is normal to feel anxious about attending a mediation with your ex-partner, especially If you have never taken part in one before.
The mediator does not take sides in the dispute or make a decision about which party is right or wrong. They work with you and your ex-partner (and possibly your lawyers) to reach agreement as part of your separation.
There is no one fixed mediation process: different mediators use different processes and have different skill sets and styles. Your lawyer will help you to select the right mediator given the nature and complexity of the issues and the dynamic with the other party (and their advisor).
The mediator may initially choose to meet with both parties separately (often by telephone or video conferencing) for an ‘intake session’ to discuss your concerns and your desired outcomes. The mediator will use the information gleaned from these conversations to help them decide how to conduct the discussion and negotiation.
The mediator may ask both parties’ lawyers to open with statements on their clients’ behalf. The goal is to:
- work out what the main issues are; and
- narrow down the issues to those about which the parties disagree.
The mediator may then ask each party to consider options for settlement. They may also ask one party to make an offer. Offers will be exchanged until agreement is reached. The aim of this process is to resolve the issues in dispute.
Negotiations can be in a joint session or separately, either in person or remotely by video or telephone conferencing.
If you choose to do the mediation separately the mediator will convey the offers back and forth between the parties and may make suggestions on the framing of offers. This approach tends to be preferred in family law disputes because a spouse may not feel comfortable, or may be emotional or fearful of the other person and so unwilling to be on the same call as them.
Each party is in a different room with their lawyer and the mediator goes back and forth. This can also be done by separate phone or video calls between the parties and the mediator. Each spouse can make decisions without pressure and with the assistance of their legal advisor.
Can I bring a support person?
You are welcome to bring a friend or family member with you to the mediation if you believe it will help you on the day. You should discuss this with your lawyer beforehand. If you choose to bring someone with you, they must not obstruct the prospects of a settlement or inflame the dispute. Before the mediation you should discuss with your lawyer the name and your relationship to your proposed support person. The mediator may require enough time for them to obtain the other party’s agreement to the inclusion of your proposed support person.
What is my lawyer’s role?
Your lawyer plays an integral role in managing the negotiation process, taking into account their experience and their knowledge of the mediator and the other lawyer.
As mediation aims to reach a mutual consensus, mediation is very different from Court and your lawyer will act differently to how they would in Court. Rather than advocate as they would in Court, they will most likely calmly discuss the case with other practitioners. Your lawyer will guide you through the process respectfully and work with the other lawyer and the mediator to positively problem solve. An aggressive approach at mediation is likely to reduce rather than enhance the prospects of settlement.
What is my role?
Assisted by the mediator and your lawyer, you can be best informed to decide whether to reject or accept offers of settlement and what (if any) counter-offer you wish to put on the table. Reaching agreement often requires both parties to compromise. The mediator will inform you of the other party’s offers and counter, but the final decision is up to you.
You should not feel pressured to agree to an offer if you do not feel comfortable with it. If during the mediation you feel uncomfortable, you should tell the mediator so they can try to resolve your concerns. If you are feeling fearful, overly anxious or overwhelmed, you can take a break, giving you a chance to clear your head, calm down, or refocus.
Once agreement has been reached at mediation, the lawyers set out the terms of the agreement in writing, usually in the days immediately following the mediation. The documents are then signed by the parties and their lawyers. If the matter is in Court and the next hearing is imminent, the signed documents may be handed up to the Registrar or Judge at the next hearing. If the matter is not already in Court, the documents are filed electronically in Court. The agreement is not final until the Order is made.
Agreement not reached
If the parties do not reach agreement at mediation, your lawyer will discuss the next steps with you. You will need to work with your lawyer to determine a strategy which may include making further offers, or litigation culminating in Court Orders.
Where to now?
We are there to prepare you for and support you through the mediation process. Preparation and obtaining all the information you need to make informed decisions and negotiate the issues is key to a successful mediation. We will work with you before the mediation so you are well prepared and know what to expect. Contact us to speak to a lawyer about mediation in family law.