How does mediation work?

Mediation and Family Dispute Resolution which is just a fancy name for family law mediation is a way to settle disputes without the need to go to court.

It is a form of Alternative Dispute Resolution (ADR) or how I prefer to describe the term ADR Appropriate Dispute Resolution.

I’m a huge fan of mediation. So big a fan that I started a business, Mediation Institute, to train and support Mediators. So what is so great about Mediation?

What is Mediation?

Mediation is a word that gets thrown around a lot so let me first explain what I am talking about when I use the word.

There are four critical things that make mediation work. 

Number 1: the mediator. Mediation should be facilitated by someone who knows what they are doing. Don’t allow yourself to be talked into “mediation” by someone who is untrained, unqualified and unaccredited. Those are a lot of un’s but it is really important.Your lawyer, your accountant, the HR Manager or some family member are not a mediator unless they are trained as a mediator. Even if they are they may not be suitable to mediate for you if they are not impartial.

Number 2: impartiality. This means that there is no conflict of interest for the mediator. If the mediator is going to benefit in any way from the resolution, or failure to resolve or a specific outcome from your dispute they shouldn’t be mediating. Other than getting paid their fee, which can never ethically be contingent on any specific outcome, there should be no personal benefit. This generally means that the mediator shouldn’t know either of you before the mediation although in regional and rural areas this may not be possible.  If one or both of you do know the mediator there should be a discussion about conflict of interest and mediation should only proceed if you all feel that the mediator can be impartial.  

Number 3: It is voluntary. You should be in mediation because you want to sort out the dispute. Even in Family Dispute Resolution where the family law act says you have to try mediation before going to court for parenting issues (unless an exception applies) you can still say no if you feel it is inappropriate. You can also end the process at any time if it isn’t working and so can the other side. The fact that you are mediating is in itself a sign of good intent.

Number 4: It supports self-determination. Self-determination, which is a technical term for being able to make your own decisions, is a major benefit of mediation. You only get this benefit if mediation is facilitated by an impartial and properly trained mediator who understands and can manage power imbalances.  Sometimes people experience a process called mediation but it doesn’t support self-determination. You should never be bullied, threatened or otherwise coerced into reaching agreement in Mediation. If you feel that is happening you should tell the mediator that the other party or even the mediator is making you feel that way.

Number 5: It is confidential and inadmissible. Confidentiality means that the mediator will not share information about what is talked about in mediation without your permission unless they feel that there is a treat to the safety of someone, and they need to do something about it. You will be asked to sign an Agreement to Mediate which asks you to keep the mediation confidential as well. You are able to talk to your personal or professional advisors but it isn’t for general chit chat with friends and neighbours. Inadmissible means that something can’t be used as evidence in court. The inadmissibility of offers made in mediation unless there is an agreement reached is another important benefit of mediation. It means that you can try to reach agreement, make offers to settle and if agreement is not reached then all bets are off. If you reach agreement and you want it to be binding then signing it is a good idea. Depending on the agreement that may make it a contract but even if not it will make it admissible evidence that you can use if you do have to go to court to try and get the agreement enforced. 

So how does mediation work?

The mediator helps you to share your issues in a respectful way.

They help you both to talk about your perspectives so that any misunderstandings are cleared up. 

Once the issues that are causing the dispute are clearly understood they help you to brainstorm options to resolve the dispute. Usually the agreement reached in a mediation that is well faciliated is going to be something that neither of you would have come expecting. That is part of the magic of mediation. It is a collaborative process.

What is collaboration?

Collaboration is the result of a process where both sides get their needs met in a mutually acceptable way. It isn’t necessarily going to mean that they get everything they want but it does mean that they get what is really important. A less successful mediation will result in a compromise where you both give up some of what you need in order to get a deal. Sometimes that is the best you can do and it is a better option than going to court and sometimes it isn’t.

Why not just go to court?

You should almost always try mediation or even lawyer negotiation first. By try I mean seriously try it not just make a token effort to comply with pre-court requirements.

Why? Because if you go to court you give up your privacy, you give up your right to self-determination and you will give up a lot more money than it will cost you to go to mediation.

If your lawyer is telling you that mediation is a waste of time and you should go straight to court stop and ask yourself why.

Why is your lawyer rushing you to court? Is it their vested interest in the money they will get from your case or is there a genuine urgency?

If you are trying to stop your child from being removed from the country or there is a genuine threat to their safety perhaps the rush is justified. Otherwise why not see if mediation will work first. The mediator must do a comprehensive review of your situation for safety and suitability so you won’t be required to participate in mediation if it is not appropriate. That is if you use an accredited mediator who is bound by ethical standards and knows what they are doing. 

We can’t sort it out, why would mediation be any different?

Being a process of self-determination doesn’t mean that the mediator doesn’t work for their money. Mediation is quite a structured process that is designed to help people who are in dispute or even in conflcit with each other be able to communicate. You may not have spoken directly in months, every time you try to talk about the issue you may have ended up in an argument. That doesn’t matter. A well skilled mediator will be able to help you to discuss the issues, consider options and if at all possible come up with a resolution that you can both live with.

Even if one of you can’t face speaking directly mediation can occur via what is called shuttle negotiation where the mediator speaks with each of you separately and carries the negotiatation back and forward between you. It is a less efficient and often less satisfying process but can be valuable if there has been violence in the past and one of you is still experiencing the consequences of that trauma.

Why can’t the mediator decide what we should do?

It is the role of the mediator to explain clearly that he pr she will not make any judgment and it is up to you to find a solution. 

Some people don’t like this idea of self-determination. They want a lawyer mediator or a former judge to tell them what to do.

This iidea of handing over responsibility for the resolution of the dispute to someone else can be tempting. I understand that you are probably feeling that it is all too hard. You may also be thinking that you don’t want the responsibility so that if it doesn’t work out you can blame the mediator.

Tempting as that might be remember that you have to live with the decisions made. Why not be an active party in making them.

That said if you really want someone to recommend to you what you should do there are lawyer mediators and former judges who will facilitate a formal process very much like a private trial which is called evaluative mediation.

What is evaluative mediation?

In evaluative mediation the mediator will listen to your points of view and evidence and make a recommendation about what they think you should do. If the process is mediation they can’t make you agree but sometimes they can be very persuasive. Be prepared for that if you choose this style of mediation.

If you want them to be able to make a binding judgement you need to enter into an agreement to Arbitrate rather than mediation. In Arbitration you both sign a contract that makes the judgement of the arbitrator binding. It is like paying for a private judge.

How to prepare for Mediation

As a mediator who talks with lots of other mediators we often encouter irrational attitudes from the parties. There are several reasons why someone entering mediation may be unreasonable. There are several reasons for this.

Ignorance of the law

This is a really common issue and a professional mediator will always ask you what your uderstanding is about your situation and how a court might look at it. We strongly encourge all of our clients to get good quality legal advice and to understand their rights and options. Legal advice is a bit more of an art than a science. No lawyer can tell you exactly what the outcome of a court case would be. There are too many variables but they can give you a general idea and hopefully shake up any unrealistic expectations you have.

There is no such thing as a right to 50/50 time with a child although there is an expectation that children will have the right to a meaningful relationship with both parents and extended family and culture if it is safe for them to do so.

Likewise a 50/50 split of your assets might seem to be overly generous to one person and yet the court doesn’t just take into account contributions made in financial terms. It looks at non-financial contributions to the relationship and also future needs. If you have young children it is important to talk to the lawyer about how the court is likely to provide a larger percentage of the asset pool to the parent who will have a greater need for money to support their care of the children.

When mediation alone isn’t enough

Sometimes there is what in mediator terms is an extreme power imbalance between the participants. This may be due to the gender roles, a history of family violence, financial literacy, education, mental health or other factors that mean that one of you is at a disadvantage during a negotiation process.

Sometimes the power imbalance isn’t too bad and the mediator can moderate things so that the mediaiton is a fair process. Sometimes the power imbalance is too much and the mediator doesn’t feel that it will be fair. In these situtions they will talk about support people in the mediation.

Who are Support People?

Support people are people who come to and participate in the mediation. Examples of support people are a case worker or other family violence support person, lawyers, financial advisors or others such as a non-controversial family member. It depends on the mediator but generally their role is to povide emotional support or advice but not to speak on your behalf.

Getting support before mediation

Sometimes if one of you is very upset and emotional it might be too soon to be making decisions in mediation. The mediator may refer you to a counsellor or divorce coach to help you to get on top of your emotional distress and gain clarity about what you want for the future. 

This can be helpful if one or both of you are overwhelmed by grief, anger, fear, sadness or other strong emotions that you are having trouble dealing with.

Child Inclusive Processes

In standard mediation children do not particiapte in mediation. There are processes such as family group conferencing where the children and extended family are part of the process but in standard Family Dispute Resolution it is the parents who decide.

Sometimes parents can find themselves stuck in a deadlock about what is best for their children. A process called Child Inclusive FDR can be helpful.

In this process a Child Inclusive Practitioner meets with your children to find out what is going on for them. This is also a confidential process and they talk with the child about what they want to share with their parents.

It can be a great way to switch your focus away from your fight with each other and back to what really matters, which is that your children are protected as much as possible from long term harm to their development resulting from a poorly managed divorce.

The skills of a Mediator

A well trained mediator doesn’t just learn how to faciltate the mediation process. They develop high level interpersonal skills.

An empathetic attitude (the ability to understand others emotions) and attentive, active listening create an environment of trust and comfort.

If either or both of you do not have good negotiation skills the mediator will help you to communicate clearly and safely about your proposals and offers.   They will use language skills like pre-framing, refaming, summarising, paraphrasing and reflecting to help you to hear each other, express yourselves clearly and negotiate.

The mediator also knows that you may not be able to make decisions by yourself. You are part of a family and social group and you may need to talk things through to be clear about your own mind. Mediation is a flexible process where you can take a time out to talk it over with someone. You can have multiple sessions, trial periods to see how a proposal will work and generally be as flexible as you need to in order to come up with the best plan for your family.

Tough on problems, supportive of people

In mediation expect to be supported and respected. The problem is the problme not the people. You can’t change the past so the mediator won’t spend much time talking about it and may redirect anyone who wants to focus there. What they will spend time on is undertstanding the problems as you both see them. They will ask probing and at times uncomfortable questions in order to make sure that the problmes are fuly understood.

They wil also aks you both to make full assessment of future risks – time, money, reputation, if the dispute is not resolved so that you don’t discount a reasonable settlement for an outside chance of a better deal in court.

They will take note of your progress towards a resolution, summarising and reiterating the progress made, so that you don’t get overwhelmed and too caught up in your problems.   

Breaking the problem down, dealing with smaller points one by one, can effectively set the momentum in mediation process. A mediator can also try to shift the focus from monetary aspects to see if there are non-monetary elements available to improve the proposed deal. There are often intangible benefits that can make a deal that doesn’t look that good on paper attractive in the real world.

The final thing that a good mediator will do is try to find the flaws in your agreement! If what is poposed won’t stand test of probing questions about how it is actually going to work then it isn’t really a solution, it’s just an option. This reality testing will usually result in a better agreement than one that is taken at face value.