Introduction
Undertaking family mediation is an important part of the divorce process and being suitably prepared will ensure a successful outcome. There are a number of factors to consider when readying yourself for mediation as you’ll see in the blog below.
Why Preparing for Family Mediation Matters?
Family mediation is conducted in the best interests of the children who are impacted. With this framing it is easy to justify thorough preparation. It is the children who will benefit. Preparation also matters as the stakes are high. With both parent planning mediation and financial and property mediation provision for the children, the split parents, and the future of all are examined.
Understanding the Family Mediation Process
- Initial Intake Meeting: This meeting is when the clients meet with the family mediator individually. They share their story, how they came to be in their current situation, and what they want the future to look like for them and their children. Clients are asked about the issues they feel need mediating, thoughts on possible solutions, and areas of agreement already established. Importantly, the mediator will outline the mediation session process, how it is framed, will seek information about the children impacted, and offer information and the opportunity for clients to ask any questions they may have.
- Negotiation and Joint Sessions: During the mediation the clients control the content of what is said while the family mediator controls how the session unfolds. Mediators have a professional skill set that allows them to constantly monitor for power imbalances, coercion, and not acting in good faith. They can also ensure that both parties are communicating effectively, have the opportunity to discuss all that they wish to, and have time outs as needed.
- Reaching Agreement: As family mediation progresses the mediator takes notes, highlights areas of agreement, reality tests ideas, identifies stumbling blocks, and begins drafting an agreement. The mediation is designed to reach agreement and it is this that will be achieved through the mediator preparing it as mediation moves forward. This preparation will be highlighted to the parties as it evolves and becomes a point of focus the further the mediation goes. Importantly, if there are areas which clients simply cannot agree upon that does not mean the mediation has failed. Areas of agreement are noted, areas of disagreement can be parked and come back to at a later time either in the session or at a subsequent session. The family mediator takes the draft, turns it into an agreement and then distributes it for signing by both parties. This can often be done on the day at the conclusion of the mediation session!
How to Prepare for Family Mediation
Emotional Preparation for Family Mediation
- Approach Mediation With an Open Mind- You are in mediation to negotiate and reach agreement to ensure that both parties are able to meet the needs of the children. You need to consider options, actively listen, and consider a range of pathways forward. One key thing to remember is that issues between you and the other party are not what we’re at mediation to discuss. You are both in mediation to collaborate and meet the needs of the impacted children.
- Manage Your Expectations- By being in mediation both parties are acknowledging that they are in disagreement. You need to enter mediation knowing you won’t get everything you want, the way that you want it. Expect to move your position on the issues arising as well as how needs will be met. Mediation seeks to meet needs and this usually involves finding a middle ground that, while not your ideal, is likely the closest to ideal for the children.
- Prioritise Your Children’s Wellbeing Over Winning- You will get tired of hearing the emphasis the family mediator places on meeting the needs of the children! You’re there to collaborate for them. Personal issues between you and the other party are utterly irrelevant to the mediation. The spousal or partnership relationship hasn’t worked out however the parenting relationship and obligations remain. And that’s where your focus needs to be!
- Look After Yourself Before and During the Process- You’ve prepared yourself physically and mentally prior to mediation. Great! During mediation you need to monitor your own emotional and physical states. If you’re thirsty, need the loo, feel overwhelmed, are confused, then ask for a break. You may wish to have a short chat with the mediator about how you’re doing and they can support you just as they can support the other party. It’s important to speak up and seek the time and space to recalibrate and return to mediation feeling confident and able to manage.
Practical Preparation for Family Mediation
- Gather Your Financial Documents- if you’re undertaking a financial mediation it is premised on you having evidence of your current financial state. The simplest way to achieve this is by having all your bank statements, valuations, mortgage documents etc with you. Having copies is also a wise idea!
- Know Your Assets, Debts, and Property- In financial mediation it’s crucial that you’re aware of your financial state i.e what do you own, what do you owe, what financial reserves and investments do you have?
- Identify Your Priorities and Non-Negotiables- Consider what is most important to you and consider areas that are open for negotiation as well as any non-negotiables. Also ponder what you’ll do if agreement isn’t reached and the likely consequences of this.
- Prepare for Best-Case, Worst-Case, and Most Likely Outcomes- What exactly are your best and worst case scenarios? How will you negotiate towards one and not end up with the other? What outcomes do you feel would be fair and reasonable and what is the likelihood of reaching agreement around these?
Communication Strategies That Work in Family Mediation
- Use “I” Statements Rather Than “You” Statements. You’re speaking for yourself and focussing on the children. Often ‘you’ statements sound accusatory and laden with blame. Really not helpful. You’re looking forward and have a valuable opportunity to share your thoughts. Use it wisely!
- Acknowledge What the Other Person Has Said. This underpins active listening. It’s useful to paraphrase or summarise what the other party has said.
- Be Specific About What You Need. This specificity needs to be backed up by justifications and these should be based around perceptions of the children’s needs.
- Keep the Children’s Needs Central. At the forefront of your thinking has to be the best interests of the children. This is why you’re mediating! Keep reminding yourself of this during the session.
- Ask Questions Rather Than Making Assumptions. Clarify, consider, give hypotheticals. Ask a range of open and closed questions to best ensure that you and the other party have shared understandings regarding all aspects of the children’s needs and the planning you’re undertaking.
What to Do After Family Mediation
Simply, put the plan into action! The agreement or plan you have reached is now live and there is an expectation that you’ll act on it from this time forth. Your agreement may likely include some boilerplate type clauses about how and when to communicate and when to review the plan. It is important to let the other party know if an aspect of the plan isn’t working or if your circumstances change to the extent you can no longer meet your obligations. This may lead to another mediation session or direct communication between you and the other party to review and alter the plan using the methods and strategies you decided upon.
When Family Mediation May Not Be Appropriate
There are a number of instances when mediation simply may not be appropriate. At Resolutions Australia we have encountered all of these and we usually advise clients to return to their family lawyer to discuss pathways forward.
If family violence is an issue then it is unlikely that mediation will take place. This can be due to safety concerns, an imbalance of power, client mental health, or evidence of coercion.
Health issues, both physical and mental, can be a reason not to proceed with mediation. If the client’s health is such that they’re not able to fully engage with the process due to health concerns then it would be remiss of a family mediator to proceed. Sadly, we have encountered potential clients with substantial mental health issues, brain injuries, addiction problems, and significant physical health concerns that have meant mediation simply isn’t an option.
Cognitive capacity may be an issue for a small number of clients. If a client isn’t able to grasp and fully understand the process, the purpose, and the potential consequences of family mediation then it would be extremely unwise to proceed. A number of family mediators look on this area in a similar way to the medical concept of informed consent. If a patient isn’t fully informed, or understands what they’ve been informed about, then a procedure shouldn’t happen.
Lastly, and sadly all too frequently, when one party is simply unwilling to mediate. A family mediator will explain the process to a reluctant invitee however if they are engaging only because they are expected to then the question of good faith comes into play i.e. they don’t want to be in mediation and don’t use the process for genuinely trying to resolve issues with the other party.
Summary
Family mediation is an important process and there are a number of strategies you can utilise to make the most of the experience. Solid, purposeful preparation is your most valuable tool in undertaking a successful mediation.
By understanding the process, emotionally readying yourself, and remembering effective communication strategies the likelihood of a successful outcome to mediation is greatly increased.
All parents want to do the right thing for their children and by keeping this as your focus your active, engaged preparation will help you achieve it.
If you believe you’re ready to engage in the family mediation process, from preparation to agreement, then Resolutions Australia are ready to help.
