When it comes to divorce mediation there are a number of ideas and preconceptions people hold. It’s these that often see the parties in conflict make simple mistakes that have the potential to derail the mediation. At Resolutions Australia we provide ample resources and opportunities for clients to read up on mediation, upskill themselves, and ask all the questions they wish about the divorce mediation process, what to expect, and how to avoid simple mistakes.
With this in mind, what follows is a number of tips for divorce mediation that will support you, the client, in your efforts.
Why Getting Divorce Mediation Right Matters
Getting it right matters immensely for a number of reasons. As parents you know your children and their needs better than anyone. It’s you who should be making the decisions together rather than entering an adversarial conflict via lawyers and court where the decisions are taken out of your hands. The cost of not getting divorce mediation right can run into the hundreds of thousands of dollars. Court costs, lawyers and barrister fees, expert reports, travel and accommodation for your hearing, the negotiation between lawyers that’s happened prior and not been successful…
The above compared to divorce mediation with Resolutions Australia that costs just $800 per person.
Getting it right matters!
Mistake 1 — Going Into Mediation Without Preparing
Your family mediator will spend time with you pre-mediation, answering any questions you have. They’ll also send you information about the process. At intake there will be a broad discussion about your story, the journey thus far, the children, the relationship, the split.
If, as a client, you don’t spend the time and energy using these opportunities to prepare for mediation then the chance of developing a Parenting Plan or financial/property agreement is greatly diminished and the consequences may end up being lawyer negotiation or a Family Court process. Both of which are hugely time consuming, expensive, and stressful compared to mediation.
At Resolutions Australia we frame divorce preparation as the effort a parent puts in to ensure the best interests of their children are met now and into the future.
Mistake 2 — Not Getting Independent Legal Advice Beforehand
Resolutions Australia always recommend clients get independent legal advice before attending divorce mediation. By doing so it helps ensure that clients understand the separation and divorce process and know how and where mediation fits in this.
For a number of clients having the financial means to meet with a lawyer can be problematic. At Resolutions Australia we provide referral information to services who can support with this.
Mistake 3 — Letting Emotions Drive Decisions
Emotions! If ever there was a process where emotions become heightened and negative it’s divorcing. As mediators we recognise this and have a number of strategies to support clients with their emotional regulation.
At Resolutions Australia we encourage clients to frame mediation as a collaborative business meeting. As such emotions are left at the door, your mediator will question and test decisions, and you’ll be provided with ample opportunity to reflect and talk out the decisions made and the impact they’ll have.
Mistake 4 — Failing to Disclose All Assets and Liabilities
Conducting a financial or property mediation is based on the assumption of full disclosure. That means that every financial and/or property interest is noted and discussed and that there is evidence of value. This means clients need to present mortgage and bank statements, property valuations or estimates, balances of bank accounts, book value of cars, superannuation accounts…. A long list!
Not everything has evidence. For example, the 7 year old lounge suite or inherited stamp collection. That’s not a problem. The value of these sorts of items can be discussed as well as pondering sentimental value and how these lower value items are accounted for.
Failure to disclose assets and liabilities is the primary reason this type of mediation fails. It is frustrating for all concerned. In saying this it can be worked around with a later disclosure happening. This can protract the process and also be cause for further dispute.
All of this links back to client preparedness and will be emphasised to you by your family mediator.
Mistake 5 — Focusing on Winning Rather Than Resolving
At Resolutions Australia we spend a great deal of time working with clients to ensure they understand that family mediation is collaborative. That the parties in dispute work together in the best interests of the children impacted.
Family mediation isn’t adversarial. The only ‘winners’ are the children. There are no losers.
Your family mediator will continually focus the mediation on this if clients start to become adversarial. In fact the entire purpose of family mediation is that it is collaborative and an opportunity to establish a new parenting relationship.
From experience we know that those who enter family mediation and try to ‘win’ will inevitably ‘lose’ as their efforts may well lead to termination for a failure to act in good faith.
Mistake 6 — Using Mediation to Punish the Other Party
Unfortunately there are clients who, for whatever reason, present to mediation having done everything right and then they proceed to try to use the session to somehow punish the other party. The family mediation becomes about power for these people and their behaviour derails the genuine effort being made by the other party and divorce mediator.
Thankfully these situations are few and far between!
Your mediator is specifically trained to recognise power imbalances and harmful behaviour. Neither will be allowed to endure with warnings given, reminders of expectations, and termination a very reasonable possibility.
As already noted, family mediation is all about the kids. Those who attend and don’t leave their personal issues and negative emotions at the door simply won’t last in what should be a positive and constructive working environment.
Mistake 7 — Agreeing to Something You Don’t Fully Understand
Thankfully this is an error that isn’t frequently made. Your family mediator will be checking, reality testing, and questioning to ensure all parties understand not just what is proposed but how it will actually work.
Sadly there are a few instances from time to time where clients simply agree to something to hasten the mediation process and decrease the stress levels. Thankfully mediators are on guard for this and will use the techniques above, as well as addressing any power imbalances, and will offer a break.
Mistake 8 — Ignoring the Children’s Best Interests
While all family mediations are legally obliged to be framed around the best interests of the children it is easy to lose this focus amongst all the discussion. While initial ideas may be around the children occasionally clients will slip into thinking of how best to minimise inconvenience and effort for themselves. Another way the child focus can be lost is when the personal baggage between parents becomes a power struggle. Where every supposed ‘win’ with ideas is seen as a victory over the other party.
Your family mediator is there in part to address these sorts of issues with you. They are not silent in the process especially when it comes to the fundamental premise for the mediation, the best interests of the children.
Mistake 9 — Not Using the Intake Session Properly
Intake is a very valuable opportunity to discuss your situation (and yourself!) with the family mediator. It is vitally important that all the important details are included. Your mediator will ask you lots of very open ended questions with follow-ups. Clients have to be up front and honest. No surprises! This honesty ensures that the mediation session is authentic, built on trust, and is ultimately effective. Failure to include important information can mean the mediation gets terminated.
It is also important for the client to use intake to ask questions of the mediator. If a client doesn’t fully understand an idea or concept, the nature of the process, how mediation is framed etc then intake is the most valuable time to discuss these concerns.
At Resolutions Australia we want our divorce mediations to run as smoothly and collaboratively as possible. With this in mind we encourage, support, and expect all parties to be open and honest and to raise issues as they appear. We’re here to help!
Top Divorce Mediation Tips:
- Be open, honest, and curious at all stages of family mediation.
- Mentally prepare yourself by framing mediation as a positive platform to develop solutions.
- Remember…it’s for the kids!
- Come to mediation with ideas and an open mind.
- Look to the future and silo personal issues from the past.
- Make sure you’re mediating in a setting where you’re feeling comfortable, relaxed, and confident.
How Resolutions Australia Helps You Avoid Mediation Mistakes
From first contact to final agreements, Resolutions Australia provides all the support, ideas, guidance, and advice you’ll need. We educate, answer questions, provide referrals, and make sure that each and every client enters family mediation feeling empowered and confident.
If you’re seeking a family mediation that’s timely, affordable, and where your mediator is just a call or email away then we urge you to get in touch with us.
Some Important FAQ’s to Finish:
What should I avoid saying in divorce mediation?
During a family mediation session it’s important to remember that you’re there to collaborate for the best interests of the children impacted.
With this in mind your family mediator will support both parties to remain civil, and focused on the content of the mediation rather than any ill will between them. This means no inappropriate communication e.g raised voices, profanities, name calling, defiant or threatening body language. It also means not rehashing the past. The mediation is about the present and the new future. The split has been made and what has occurred has occurred. We’re now looking forward and establishing how this will be managed. With this in mind your mediator will likely step in and stop any drifting backwards. Sentences that start with “This is what always happens…”, or “He/she always does this…” are out!
Instead it’s about recognising what will need to change to make the planning work.
Can I change my mind after family mediation?
Yes, you can change your mind after a family mediation however there are repercussions for doing so.
If you change your mind and don’t follow through on the Parenting Plan or financial/property agreement you’ve decided on then the other party will likely discuss this with their lawyer. If failing to follow through continues then the other party may well seek to approach the Family Court to have a formal order made that is legally enforceable. The plan or agreement developed with your family mediator will probably form the basis of this order and the judge may take a dim view of a party who has agreed to a plan then changed their mind.
Bluntly put, at Resolutions Australia we have seen this occur and it never ends positively for the party who arbitrarily changes their mind post-mediation.
It is our view that should one party wish to change their mind then returning to family mediation should occur!
What if the other party is not negotiating in good faith?
Occasionally at Resolutions Australia we’ll encounter a client that isn’t negotiating in good faith. Essentially this means they’re not purposefully seeking to resolve the presenting issues. They may be trying to use the family mediation process to wield power, emotionally attack the other party, or simply as a stepping stone to going to family court.
Don’t worry, your family mediator is on the job!
A significant part of a family mediator’s role is monitoring the discourse and communication. They’re constantly looking out for signs and signals that a party may not be acting in good faith. They will call the party out on this and provide reminders around expectations as well as a warning that failing to act in good faith will mean the termination of the session. If a termination happens due to one of the parties not acting in good faith then this will be reflected in the section 60i certificate that may be used in the Family Court.
How do I stay calm during divorce mediation?
There are a number of steps you can take to stay calm during family mediation.
Firstly, frame the mediation as a business meeting. Think about what’s required in a business meeting and aim to be positive, solution focussed, and professional. To further support this you can visualise leaving your personal feelings and baggage at the door. It may sound unusual but it really does work.
Make sure you’re in a comfortable setting for your online mediation. Interruption free (including pets!) You’ve got snacks handy, a hot drink, water bottle, and you’ve enjoyed a healthy breakfast.
During the mediation don’t be afraid to take up the family mediator’s offer of breaks as needed. You’re very welcome to request a break. When a break occurs it’s important to get up, stretch, walk outside for a few minutes, pat the dog etc. A total break from the screen and using the senses is very effective.
You can also ask for a private session where you’ll speak one to one with the mediator and here you can raise any concerns you might have about remaining calm and managing your emotions.
During the session aim to respond rather than react. Use some thinking time, be future focused and child focused, and remind yourself that you’re doing this because you’re capable, confident, and know what’s best for the kids!
Is shuttle mediation available at Resolutions Australia?
Absolutely it is! At Resolutions Australia we offer online shuttle mediation. In effect this means you will neither see or hear the other party during the entirety of the mediation.
Many clients find that this supports their emotional state and feelings of safety, security, and confidence.
At Resolutions Australia we’ve also found that online shuttle mediation is just as effective as standard mediation!
