What Not to Say in Family Mediation: 8 Key Mistakes to Avoid 

Introduction

Engaging in family mediation can be a stressful and emotionally challenging time for many people. As such it isn’t uncommon for parties in conflict to say or behave inappropriately as a reaction to what’s unfolding. While a one off instance can be excused and reflected on it’s important to realise that ongoing inappropriate responses can lead to termination of the session.  

What Is Family Mediation?

Family mediation is a form of alternative dispute resolution. It involves parties in a divorce collaborating to identify and address the best interests of the children impacted, and then plan to address those needs. Unlike negotiating through lawyers or going to court the process isn’t adversarial, it is collaborative. It isn’t involved with issues between the couple, rather it is all about the children.

What Not to Say in Family Mediation? 

Clear, positive communication is essential for a constructive family mediation. Your family mediator, or family dispute resolution practitioner as they’re more formally known, will monitor your communication. This will involve constantly being aware of the appropriateness of what is being said, how it is being said, the attached body language, tone, and volume.

Broadly, the following 8 examples should be avoided.

1. Attacking or Criticising the Other Person. The antithesis of what parties are attending family mediation for! Remember, you’re there to address the best interests of the children. An attack on the other party is an attack on the mediation and the needs of the children as it places the mediation in jeopardy.
2. Making Threats. This will likely lead to immediate termination of the family mediation session. Regardless of the degree of threat, it is a threat, and a clear signal that the party involved is not acting in good faith. 
3. Talking Over the Other Person. Family mediators are constantly monitoring the power balance in a mediation session. This ensures that both parties are heard, have a fair amount of time to speak, and are not subject to any behaviour from the other party that hinders their opportunity to mediate. Talking over someone (be it the other party or the mediator) is a clear example of power imbalance and your mediator will not allow it to continue.
4. Refusing to Consider Any Compromise. Collaboration and negotiation require compromise. It underpins the very nature of family mediation. Parties that present to a mediation session and refuse to make any sort of compromises are not acting in good faith. Both parties are attending to work their way through the issues in front of them. A refusal to compromise means the mediation will not be successful and the split couple will likely have to reach agreement via lawyers or the Family Court. Both are hugely lengthy and costly avenues to go down.
5. Bringing Up Old Arguments That Are Not Relevant. At Resolutions Australia we’re quick to remind clients that they’re mediating for the sake of the children and that any old issues between themselves are best left in the past. We don’t let clients waste time litigating ‘baggage’ from years gone by. Our mediators keep the focus on the children’s needs now and into the future.
6. Using “My Children” Instead of “Our Children.” Given that family mediation is a collaboration between parents it is important to remember that you are attending to support ‘Our children.’ While the marriage is ending the parenting isn’t and the children are ‘ours.’ The use of the word ‘my’ also implies a sense of ownership which certainly isn’t the case. Both parents have responsibilities around the children and this needs to be reflected in how they’re described. It makes for a smoother, more collaborative mediation process.
7. Claiming the Mediator Is on the Other Person’s Side. Your family mediator has post-graduate qualifications in family dispute resolution. They are also registered with the Office of the Attorney General of Australia. To suggest that they are anything but impartial is to do yourself and the children a disservice.  Occasionally it does happen however it is usually when one party is not acting in good faith and is looking for a way to disrupt the mediation session. A very rare occurrence!
8. Discussing Mediation Details Publicly or on Social Media. From a family mediator’s perspective a mediation (including initial contact and intake) is carried out in the strictest confidence.  It is expected that both parties adhere to this. While parties are able to discuss outcomes they should not disclose any aspect of the mediation itself. Sadly, some parties may note outcomes on social media for friends and family and then begin to respond to questions. This inevitably leads to a slow release of details from the mediation itself.  Clients need the reassurance on entering mediation that what is said is confidential. This helps ensure full and frank discussions. Without an understanding of confidentiality, mediation will likely not be successful. 

Why What You Say in Mediation Matters So Much

Appropriate communication is essential for a successful mediation. The words we use are so often loaded with power, ego, ownership, and entitlement. They can be weaponised and this detracts from what should be a collaborative effort. 

Compounding this is the thought that what is being discussed is as potentially high stakes as you may ever get. You’re talking about the lives of your children and as difficult as this can be it will become more so if the family mediation is derailed due to the negative use of language.

At Resolutions Australia we’ve seen too many clients try to use mediation as simply another context for verbally attacking their former partner. While our mediators have numerous strategies to minimise this there can be occasions where one party simply doesn’t meet the expectations and mediation is terminated. This then means litigation, stress, delays in parenting planning, both parties disempowered from decision making, and the enormous expense that then comes from lawyers and Family Court. And all for what? A decision made by someone else and often irreparable emotional damage to all impacted.

Getting what you say right in family mediation is essential to a greatly more positive future than if you pursued other forms of dispute resolution and it is worth the effort. 

We encourage you to leave egos at the door and engage for the sake of the children.

What Can Derail Mediation?

When speaking with family mediators about unsuccessful mediation sessions several themes become evident. Family mediations are most often unsuccessful due to the following…

• Parties attending who are not acting in good faith. They see family mediation as a box to tick prior to a Family Court hearing. They may simply refuse to move on their position without any thought of compromising. Another, coercion during mediation where one party tries different tactics to wield power. This includes dominating discussions, failing to respond to what’s been said, aggressive body language or tone of voice, or even ‘gentle’ blackmail.
• Ego over effort. Sadly, some clients believe they’re ‘right’, the other party has no clue about the children’s needs, and outcomes will be their way or the highway. In short this client has nodded their way through intake, agreeing with everything the family mediator has said, and then reached the session and gone rogue. The mediator will remind them of the expectations however the pattern of behaviour will continue and the session will end up terminated.
• Volcanoes and glaciers. Occasionally clients may try to sway the mediation session by either erupting or melting down. These are tactics elicited to emotionally manipulate the other party and are often used as a last resort by parties wishing to get exactly what they want without compromise. Skilled family mediators can spot the difference between one of these episodes and a genuine occurrence of anger or upset.
• Capacity, emotions, and readiness. For some clients the process of getting themselves prepared for a family mediation is a simple one. They’re confident, have read the information and had questions answered, have resolution ideas in mind, know what they’re able to compromise on, and are feeling safe and engaged purposefully with the process. This isn’t the case for a number of clients. Many may struggle to be emotionally ready due to the nature of the situation they’re navigating. Further, they may lack the confidence to ask questions and may not fully understand the information provided.  In effect they see even getting to the mediation session as a huge effort, let alone actually mediating. One thing they may do well is masking all this so as to not appear unwilling or unable. While the family mediator will be monitoring both parties and has helped them prepare, it isn’t until the mediation session proper that a party’s state becomes evident. In these situations the mediator should halt a session, ascertain the issues presenting, then, if appropriate, support the struggling party to be fully prepared for a future mediation session. That or provide referral support to an agency who can support as required.

What to Say in Family Mediation: Helpful Phrases and Approaches

• Use “I” Statements Rather Than “You” Statements. You’re speaking for yourself and focussed on the children. Often ‘you’ statements become accusatory and blame laden.  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.

How to Prepare for a Family Mediation Session

In regards to communication and preparing for family mediation there are several handy points to remember. Firstly, use the tips above, they work, and they support positive decision making. Secondly, come with ideas to share about the needs of the children and family going forward. Practise how you’ll present these in mediation.

Use examples to highlight the points you wish to make. This provides the other party with a tangible image of what you’ve shared.

Have conversations with a friend or family member and practise paraphrasing and summarising what they’ve said. Try adding to their point. Also use practise conversations to check your tone, volume, and body language.

Identify possible words, terms, or phrases that you might find emotionally triggering and then consider how you’ll handle this if it does occur.

How Could All These Ideas Be Summarised?

While the above reads very much as a do’s and don’ts type list it’s important to recognise the totality of what makes a successful family mediation. The above ‘don’ts’ really highlight the low level indicators of a client not acting in good faith or in the best interests of the impacted children. The ‘do’s’ tips highlight the collaborative nature of the process and how parties can make the most of the process.

At Resolutions Australia we see success after success with clients who work determinedly to maintain a focus on the children within a collaborative framework. They lean into the mediator’s support and keep looking to the future. Failure comes when any one of those factors isn’t valued or respected and from there the resolution of issues becomes adversarial, expensive, and emotionally harmful.  A tragic outcome from what could have been an empowering and affirming process.

If you’re ready to engage in a positive, effective process, for the sake of your children we encourage you to make contact with us here at Resolutions Australia. We’re ready to support your efforts!

Frequently Asked Questions

What is the golden rule of mediation? 

As in life the golden rule in mediation is to treat others as you’d wish to be treated. In essence it means maintaining the standards set, meeting expectations, and maintaining a focus on collaboration for the benefit of the children.

What is the biggest mistake in a custody battle?

Simply, it is a failure to prioritise the best interests of the children impacted by the divorce the parents are going through. Because of this ‘custody’ becomes a ‘battle’ rather than sharing ‘responsibilities’ being a ‘collaboration.’

What not to do during mediation?

As you can see from the blog above there are numerous ‘don’ts’ when it comes to communication. The reality is that the largest two ‘dont’s’ are don’t forget you’re mediating around the best interests of the children, and don’t forget that you’re collaborating with the other party. If either of these is forgotten then the likelihood of a successful family mediation outcome being achieved is greatly diminished.

What happens if mediation breaks down?

Most importantly, don’t give up! When a family mediation breaks down your mediator will likely emphasise what has already been achieved as well as suggesting taking some time to reflect and return. A future date can be scheduled. The mediators will support parties to reflect on how and why the mediation was unsuccessful as well as note ideas about how to avoid this when mediation resumes.

If a family mediation breaks down irrevocably the mediator will issue a section 60i certificate to both parties and recommend getting independent legal advice as to next steps.