by Walid Joseph Kalouche
Mediation is a process where a neutral third party, typically an experienced family lawyer, barrister, or former judge, assists people in resolving disputes and reaching a mutually agreeable outcome without going to court. If you’re feeling anxious about attending mediation with your ex-partner, you’re not alone—these feelings are common, especially if you’ve never been involved in mediation before.
What Happens During Mediation?
It’s important to know that the mediator remains neutral throughout the process and does not take sides or decide who is right or wrong. Instead, their role is to facilitate discussions between you and the other party, sometimes with the assistance of your lawyers, to help reach a resolution of the dispute you are having during the separation.
The Mediation Process
There is no one-size-fits-all approach to mediation, as mediators may use different styles, techniques, and processes. Your lawyer will help you choose a mediator best suited to your specific circumstances, taking into account the dynamics between the parties, the issues involved, and the overall complexity of your case.
The mediator usually begins by a meeting with each party separately in an ‘intake session’ to discuss your concerns and desired outcomes and the suitability of mediation to your circumstances. These initial meetings can be conducted via phone or video call. The mediator uses the information from these sessions to guide the mediation process.
During mediation, the parties of their lawyer may make opening statements to outline their position and identify the key issues. The focus is to determine areas of agreement and highlight the points of contention.
The mediator will then facilitate negotiations, often asking each party to consider settlement options or to make offers to the other side. These offers are exchanged until an agreement is reached.Negotiations can occur in joint sessions or separately in what is called shuttle mediation, with the mediator communicating offers between the parties. This approach is particularly effective in family law matters where emotions are high or when one party feels uncomfortable or intimidated by the other.
Previously this shuttle process, parties and their lawyers would be in separate rooms while the mediator moved between them. Now, this process is replicated through phone or video calls, allowing for the same separation without physical proximity.
Bringing a Support Person
You are welcome to bring a support person, such as a friend or family member, to the mediation if it will help you on the day but the other party will have to agree to it and the support person may not participate in the process.
Role of Your Lawyer in Mediation
Mediation differs significantly from court proceedings, with the main goal being to reach a mutually acceptable agreement. Your lawyer’s role is to guide you calmly through the process, working collaboratively with the mediator and the other party’s lawyer. Rather than advocating aggressively as they might in court, your lawyer will help facilitate productive discussions and problem-solving.
Your Role in Mediation
Your role is to consider the offers of settlement with the guidance of your mediator and lawyer, making informed decisions on whether to accept or reject offers. You’ll need to instruct the mediator on your responses and consider any counter-offers you might wish to propose. Your lawyer will manage the negotiation process, using their knowledge of the mediator, the other lawyer, and their experience to your advantage.
The mediator will relay any offers and counter-offers, but the final decision always rests with you. You should never feel pressured to agree to terms you’re not comfortable with. If you feel uneasy at any point during the mediation, communicate this to the mediator. If necessary, you can take breaks to gather your thoughts and refocus.
The aim of mediation is to resolve the disputes between parties, and reaching an agreement often involves compromise on both sides.
Reaching an Agreement
If an agreement is reached during mediation, the terms may be formalised by way of a Financial Agreement between the parties or Consent Orders made by the court.If mediation dealt with parenting matters, the agreement may take the form of a parenting plan or court orders.
When you ask the court to make orders, it will apply the appropriate test before the orders are made.
If No Agreement is Reached
If the mediation does not result in an agreement, your lawyer will discuss the next steps with you. This may involve further negotiations or, if necessary, proceeding to court for a determination.
As experienced family lawyers, our role is to support and prepare you for mediation. We will ensure that you have all the information and guidance needed to make informed decisions and negotiate effectively. We will work with you before the mediation to prepare for the process and anticipate potential challenges, so you feel confident and informed throughout.
Overarching Focus
In mediation the goal is to reach a mutually agreed solution while maintaining cooperative communication, particularly in cases involving children, to promote ongoing relationships.The focus must be on compromise and to focus on what is important rather on what a party can get away with. Focus on the important and let go of other matters.
Benefits of Mediation
Two key benefits to mediation is that
- Parties’ relationship is hopefully maintained and saved from the destructive court processes.
- Parties save substantial amounts of money which they would spend on legal costs if they commence or continue with the legal process.
