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. We know that separating from your partner is an emotional time for many and it is not uncommon to feel anxious about attending mediation with your ex-partner. This is a normal feeling as you have likely never taken part in this type of process before.
What is important for you to know is that the mediator does not take sides in the dispute or make a decision about which party is right or wrong. Instead they work with you and the other party, along with your lawyers, to come to an agreeable solution as part of your separation.
With the current situation of the spread of COVID-19 around the world, you may be wondering how the mediation process will work given social distancing restrictions. We want to ensure that anyone taking part in a mediation process has a full understanding of the processes involved.
Upcoming mediations can operate remotely through technology. It is important to us, to continue to assist you in your mediation process, and we have put systems and technology in place to make this possible.
There is no one fixed mediation process as different mediators use different processes, have different skill sets and adopt varied styles. Your lawyer will assist you to select and engage the right mediator to assist given the issues involved, the dynamic with the other party (and their advisor) and the complexity of your situation. It is not a case of one mediator fits all.
Depending on the mediator selected, the mediator may then choose to meet with both parties separately for an ‘intake session’ to discuss any concerns and what each of your desired outcomes might be. In current times, these meetings are being done by telephone or video conferencing.
The information discussed in these conversations will be used by the mediator to help determine how they will conduct the discussion and negotiation.
Both parties’ legal representatives may then be asked by the mediator to make opening statements on behalf of their clients. The focus at this time is to work out what the main issues are and narrow them down into what both parties are in agreement about already and what issues there is disagreement about.
The mediator will usually then ask each party to consider options for settlement. They may also ask one party to make an offer to the other. These offers are typically exchanged until an agreement is reached. Negotiations can take place either in a joint session or separately, currently using video conferencing or telephone conferencing to accommodate the COVID-19 related restrictions.
If you choose to do the mediation separately (which is most often the case for separating couples working through family law issues) the mediator will convey the offers back and forwards between the parties and may make suggestions on the framing of offers. This is an approach that is seen to be most effective in family law because typically each spouse may not feel comfortable, are emotional or may fearful of the other person so do not want to be on the same call as the other party. This allows each spouse to be best placed to make decisions without pressure and with the assistance of their legal advisor.
In previous times, each party would be in a different room with their lawyer and the mediator would go back and forth. However, with current limitations this process is now able to be replicated via technology during would be separate phone calls or video calls between the parties and the mediator.
Am I Allowed to Bring a Support Person?
Yes, 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. However this is something best discussed with your lawyer beforehand so that they can While social distancing is still required they would be with you on the telephone or in a video discussion. If you choose to bring someone with you, they must not inflame the dispute or obstruct the prospects of a settlement. Because of this, we recommend that you discuss the name and relationship of the person you wish to bring with you, before the mediation with your lawyer.
What is the Role of the Lawyer?
The mediation process is very different from the Court process as the aim of the day is to reach a mutual consensus. Therefore, your lawyer will act differently to how they would in Court. It is more likely they will calmly discuss the case with other practitioners, rather than advocate in the same way they do in Court. During times of mediation an aggressive approach will more often than not minimise the prospects of settlement rather than increase it, so your lawyer will be there to guide you through the process respectfully and work with the mediator and the other lawyer to positively problem solve.
What is My Role in the Mediation Process?
It is your role to consider any offers of settlement, with the assistance of your mediator and lawyer so you can make the best informed decisions about whether to reject or accept those offers. You will need to instruct the mediator on whether you wish to accept or reject any offer and if required consider what counter-offer you might like to bring to the table. Your lawyer plays an integral role in managing the negotiation process, taking into account their knowledge of the mediator and other lawyers involved and their experience.
The mediator will advise you of any offers and counter-offers from the other party, but the final decision is up to you. At no point during the process should you feel any pressure to come to an agreement if you do not feel comfortable with what you have been offered.
If at any point during the mediation process you begin to feel uncomfortable, you should let the mediator know so they can address the problem and resolve your concerns. You should especially tell them if you are feeling fearful, overly anxious or overwhelmed. In these situations, you are allowed to take a break. Taking breaks can be beneficial to the mediation as it will allow you to clear your head, calm down or refocus.
It is important to remember that the aim of this process is to resolve the issues in dispute. Coming to an agreement often requires both parties to compromise.
Reaching an Agreement
Once an agreement has been reached at the mediation, the terms of the agreement will then be set out in writing and signed. Once the documents have been formalised, usually in the days immediately following the mediation, these will be signed and then lodged with the Court to become an Order. It is important to keep in mind that the agreement is not final until the Order is made.
Agreement Not Reached
If at the mediation, both parties do not come to an agreement, your lawyer will discuss the next steps with you. Both parties will then need to work with their lawyers to determine their strategies going forward which may include making further offers, or a determination by the Court.
As your family lawyer, we are there to prepare you for and support you through the mediation process. Preparation and obtaining all the necessary information needed for you to make informed decisions and negotiate the issues is key to the success of the mediation. We will work with you prior to the mediation to be prepared for the process and the different variables that may arise so you are well prepared and know what to expect. Despite the challenges currently required around social distancing our lawyers as well as available mediators are using the technology available to conduct the process via video conferencing and telephone. This can give you peace of mind that property settlement negotiations and achieving finality, can still continue during these unprecedented times.
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Disclaimer: The content in this article provides general information however it does not substitute legal advice or opinion. Information is best used in conjunction with legal advice from an experienced member of our team.