Mediation is an intervention between two disputing parties by someone external to the conflict to promote settlement, compromise or reconciliation.
The role of the mediator is to use creative solutions to enhance the parties' ability to reach a mutually agreeable solution. Accordingly, the mediator does not make a decision which is binding upon the parties.
Family law mediators draw upon skills they have obtained often from representing clients and appeared in the family law courts. There are four common models of mediation:
- Faciliative mediation: Using clear and strict protocol the conflict is defined focusing upon each parties' particular needs and interests. Facilitative mediation is interest-based negotiation as opposed to position-based bargaining. The main role of the mediator is therefore to maintain constructive communication or exchange of proposals to enhance the negotiation process. This is the model most often employed in family law disputes.
- Settlement mediation: (Also known as compromise mediation and/or advisory mediation) This encourages incremental bargaining toward a compromise at a point between the parties positions. The mediator's main role is to ascertain confidentially the parties' bottom line through persuasive interventions to move them off positions toward compromise.
- Therapeutic mediation: This type of mediation focuses upon the cause of the dispute or problem with the goal of improving the parties' relationship and dispute resolution skills for the future. This model is most likely to be employed where an ongoing relationship between the parties is required - e.g. parents.
- Evaluative mediation: The goal of this mediation is to reach a settlement according to the legal rights and entitlements of the parties within an anticipated range of court outcomes. The mediator is usually highly involved in the discussions / negotiations with the consequence being that the parties' control of the process is lessened.
In family law disputes, there is seldom one model that will suit all or one particular dispute. A faciliative mediation may require the mediator to become more evaluative in her or his approach as the negotiations evolve. There are other mediations that start and finish compeletly within settlement mediation model.
My preferred approach is to employ a hybrid of all the above models adapting the process - with the parties agreement - to suit the negotiations as the mediation unfolds. This hybrid model of mediation is often employed by most family law mediators and has been referred to as the "wise counsel" mediation. I do not like that terminology as a mediator is certainly not a party's counsel.
In all respects I maintain my practice as a mediator and conduct mediations in accordance with the Australian National Mediator Standards.
What are the events leading up to mediation ?
All mediations are different. Ordinarily a mediation will involve the following steps:
- A party, either directly or through his or her solicitor, approaches the mediator for a request for information about or for mediation assistance.
- I contact the parties, usually through their solicitors, on both sides to ask them if they are willing to consider mediation. Often agreement about using me as the mediator, the mediation and the date for mediation have already been agreed upon or ordered by the Court. (See example Court order. See example email to the solicitors for the parties.)
- Information about mediation (such as this article) and a mediation agreement (if applicable) is also sent out to the parties for completion, signature and return to me. As you will note from the example email to the solicitor, usually court documents or an outline of the dispute is also emailed to me prior to the mediation commencing.
- From this returned mediation I can ascertain whether more information is required, whether the mediation is ready to proceed or whether the matter is not appropriate for mediation (a rare scenario). Occasionally I may contact both of the parties or their solicitors prior to the mediation to ensure each party is properly prepared for the mediation however ordinarily this occurs on the morning of the mediation.
What happens in the mediation ?
Usually I will initially meet with the parties separately immediately prior to the mediation with just their solicitors. I do this to ensure each party understands the mediation process, provide any further explanation about the process and to answer any questions regarding the process.
Ordinarily during this preliminary meeting I will ascertain from the parties whether they wish to mediate in the same room or to negotiate from separate rooms (I.e. not in each other's presence). This is often referred to as a "shuttle mediation".
Family law disputes often occur with neither party coming into contact with each and it is my normal practice to require parties remain in separate rooms where there is a temporary or final protection order (domestic violence order) in effect.
Once the mediation has commenced (either in the same room) my initial task is to clarify the parties' concerns and translate them into issues for discussion. Usually I will keep a list of these issues in some form of priority. I will then define for the parties where they are in agreement or disagreement and provide a structure for the discussions. Each party is asked their views and to explain their perceptions to each other (through me) on each issue with a view to exploring options for resolving the points of difference. Thereby an agreement is pieced together.
Who can be present and confidentiality ?
Obviously the parties are entitled to be represented by a lawyer and the lawyer signs the mediation agreement as well as the parties binding them to confidentiality. Other laws and rules also bind lawyers and the parties with regard to confidentiality. All communications for the purposes of the mediation are considered, pursuant to s131 of the Evidence Act 1995 (Cth), to be privileged which means that a judge of the family law courts can not be told what was said or what offers were made during the mediation. Neither party can lead evidence in court about what was said in the mediation nor produce in court documents prepared for the mediation.
Other advisers, supporters, witness and other persons can be present at the mediation but only if the parties both agree and those additional person confirm in writing, through the legal representatives that they are bound to keep confidential the matters discussed at the mediation.
TIP: Family law disputes are sometimes emotionally charged where the breakdown of the relationship is followed (or even preceded by) a re-partnering of one of the parties to the relationship. Bringing the "new" partner to the mediation without prior notice to and agreement of the other party is something I strongly recommend against. In the same way a paternal / maternal grandparent or other relative may spark a negative emotion from the otherside if they are not forewarned. My strongest advice is that where any additional person is proposed to be brought to the mediation it is done with prior notice to and consent of the other party.
Voluntary process and keeping parties comfortable
Mediation is voluntary and I cannot compel you to start or remain at or return to a mediation. You may be obliged pursuant to a Court order to participate in mediation however I cannot compel you to enter into an agreement. If you view the process as a waste of time, I will no waste your time. However, impasses are often reached during a mediation. All I ask the parties to do is to be mindful of this and to not give up at the first sign of an impasse. As a trained mediator I am skilled at working negotiations through impasses.
During the preliminary meeting with the parties I will do my best to ensure each party is as comfortable as possible. Discussions during preliminary meetings are not revealed to the other party. A party that wishes to raise an issue of uncomfortability about the mediation; e.g. Location or adequacy of rooms, can do so in confidence with me.
A party can also ask to speak with me alone or ask for the mediation to be suspended or adjourned if they feel the need. I will do my best to alleviate any issues of concern or uncomfortability with the process remembering that each party has ordinarily outlaid a significant amount of money to me and their legal advisors to convene the mediation.
As part of meeting the National Practice Standards I will not tolerate or facilitate any conduct that is intimidatory or abusive or causes anxiety in a party.
How Long Will It Take ?
On average a parenting dispute (where children will live / spend time with a party) ordinarily takes a full day (7 hours). A property settlement dispute ordinarily takes a full day - at least 7 hours. I recommend avoiding attempting a mediation that deals with both parenting and property disputes on the one day. I have been involved in at least one mediation that was spaced out over 4 days where updating valuations and taxation advices were required and have mediated in several other matters that have been over two days.
TIP: I strongly recommend baby-sitters / school drop off-pickup arrangements are put into place in advance of the mediation and to certainly book no other appointments or engagements for the day of the mediation.
What Happens Afterwards?
One aim of mediation is to model a method of working things out in the future. Mediated parenting agreements often contain a dispute resolution clause in terms of which the parties commit themselves to a process of family dispute resolution in the event of disagreement about the operation of the agreement or if a future dispute arises. (See an example parenting order here.)
The Legal Status of an Agreement at Mediation
The level of documentation and status of any agreement reached at a mediation is a matter entirely for the parties. Tips number 5 and 8 of my article Top Ten Tips for Mediation Preparation suggests coming to the mediation with draft consent orders / terms of settlement prepared and in digital (USB) format for editing. Heads of Agreement can "bullet point" an agreement which can be later redrafted into a legally binding document. (A template property order can be viewed here.)
Do I Need A Lawyer / Expectations of Lawyers
Whenever you are negotiating disputes that effect your legal rights I recommend that you are represented at a mediation by a lawyer remembering that it is not my role to provide you with legal advice.
Mediation is an informal and flexible process in which the relevant parties can make decisions about disputes in which they are involved and in this regard the parties "own" the mediation not their lawyers. However, legal representatives can be and often are vital to the success of the mediation provided that they take upon a supportive, facilitative and encouraging role to the parties.
The following are my expectations of lawyers representing parties at a mediation;
Before the preliminary mediation meeting;
- Educate clients about the nature of the dispute (i.e. the law)
- Educate their clients about the nature of mediation and the procedure
- Ensure all preliminary steps such as disclosure, valuation, advices are finalised well in advance of the mediation
- Prepare necessary documents, reports and other materials necessary for the mediation to proceed - most parenting and property agreements contain many boilerplate clauses which should be already the subject of agreement prior to the mediation commencing
- Provide realistic and clear estimates about the expenses and likely cost recoveries of other dispute resolution process such as litigation and arbitration
- Provide a clear advice as to both best case scenarios and worst case scenarios for the client. Expect to be requested to advise me - privately - of this advice.
- Advise the client upon relevant legal issues including the Mediation Agreement - if any.
During the mediation meeting;
- Allow me to conduct the process and to provide support to me where appropriate
- Permit and encourage your client to participate fully and directly in the process
- Assist your client to focus on their personal and commercial interests as opposed to their legal rights (positions)
- Assist your client communicate accurately and comprehensively and to negotiate constructively and productively
- Provide your client with legal information and advice about their rights, duties and obligations
- Give ongoing realistic predictions about likely outcomes in court or other non-mediation processes and their relative advantage or disadvantages
- Assist in the drafting of agreements and the formalisation of the mediation in an appropriate manner.
After the mediation;
- Undertake any steps required for the formalisation of the mediated agreement and to liase with the other lawyer where necessary
- Reassure a client who may have "buyers remorse" and to reinforce with them the process undertaken at the mediation and to inform them about the options of dealing with problems in the implementation of the agreement including returning to mediation
- Maintain confidentiality of the mediation
I hope this article has been useful to you and please feel free to contact me at email@example.com if you have any other queries about mediation in family law matters.
The above has been adapted from the text Mediation Skills and Techniques, Boulle L. Butterworths 2001.