Preparing for a Family Law Mediation: What to Expect & How to Prepare

At Bespoke, we are passionate about helping our clients find a complete, overarching and holistic solution to their family law matters. This often strays away from finding a solution to only the legal issues, to also considering the impact of non-legal issues and how these may be resolved at the same time. Due to this… we are big fans of mediation or other alternative dispute resolution processes! These processes allow parties to explore issues and concerns that they wouldn’t be able to in a Court process. A Court process centres around putting the decision-making power directly into the hands of a third party who knows nothing about you or your family dynamic – a judge – who will make decisions based solely on legislation or case law.  Whereas, a mediation provides parties with the opportunity to problem solve and come to solutions that may be outside the box, but which work perfectly for their particular family or asset pool.  

Although litigation is sometimes unavoidable, at Bespoke we do our best to come to solutions outside of a Court process, as we find that these solutions are usually ones that work best for families. So, this may all sound great in theory, but what does a mediation actually entail? 

Who is a mediator?

A mediator is an independent third party who will assist you and your Ex to have discussions and attempt to reach a compromise on your family law matter – which may include an agreement on property, parenting or child support.  Mediators can range from being lawyers, barristers or even ex-judges. 

How does mediation work?

Meditation is not as scary as it sounds.  You may be imagining scenes from movies where you and your Ex sit on either side of a long table and negotiate the terms of your settlement amongst yourselves or between each of your lawyers.  This is not how mediation works in reality!  Each mediation will differ slightly depending on your mediator and the specifics of your matter, but they all follow approximately the same process. 

When you arrive, you and your Ex will be placed in separate rooms – not the same room!  The mediator will then have separate intake sessions with you and your Ex to explain the process and get some background on the issues and your position. 

The mediator may then recommend a short joint session where they will get all parties into the same room.  This is simply a session for you each to listen to the mediator talk about the mediation process, the Court process, and any other issues they wish to raise. The mediator will not expect you or your Ex to speak during this session. However, if you do not wish to see your Ex or attend a joint session for any reason, then let the mediator know. The joint session is not compulsory. 

After this joint session – you will not have to see your Ex for the rest of the mediation. The mediator will move between your room and your Ex’s room and will take offers between the two rooms.  A mediation lasts for either a half-day or full-day depending on what issues need to be resolved. 

A big benefit to mediation is that your mediation is confidential and the information or offers that come to you during this time cannot be used outside the mediation (unless this is a term in your written agreement). This means that you can have open discussions and put forward options and solutions without any fear that these can be used against you in the future in case you and your Ex are not able to come to an agreement at mediation.  There are some exceptions of course, such as if something affects the safety of someone else/any children involved. 

How should I prepare?

To prepare for a mediation, we recommend the following:

• Get clear on the issues that need to be resolved. Before the mediation, think about the main issues, your goals, your needs and your wants.  What is your bottom line, things that you ‘need’, and things that you will not be able to compromise on?  What are some things that you would be happy to move on in order to come to an agreement, the things that you ‘want’? This will help you to come into the meeting with a resolutions focused mindset and keep you moving towards a solution.
• Try to see the issues through the eyes of the other party as well. What do you think is their driver? Is there some aspect of the agreement you could compromise on that you know is important to them, and may result in them shifting and compromising on something that is important to you?
• Be imaginative. The solutions developed in a session can be tailored to your unique matter, making them far more personal than if the resolutions were decided by the Court. Think about your family and what would work best for them.
• Test the solution. Don’t be afraid to walk through the practical things that have to happen day to day, week to week in your lives to make sure that you can actually make the agreement work.  This is especially relevant in discussing parenting arrangements.
• Come prepared.  For example, if you think you would like to keep the house, then talk to a bank and make sure you would be able to borrow enough funds to take over the mortgage by yourself.  Or if you think you will have to rent for a period of time and need funds from your Ex to help you, then research the cost of rental accommodation in the area you want to live.  Think about the practical steps that need to be put in place for each option you are considering and explore whether it is something that could actually work. 

Should I bring a lawyer or attend by myself?

The advantages of bringing a lawyer to the mediation with you is:

• They will be able to provide you with advice throughout the day as to your range of entitlement of whether or not you should accept certain offers.  
• They will be able to assist with negotiation strategies and suggest what offers should be made to try and move the discussions along to reach your ideal outcome. 
• They will be able to bring up new topics and considerations that you may not have thought about. 
• If an agreement is reached on the day, they will be able to draft this agreement into a formalised form so that it is binding and enforceable. 

Although it can be helpful to have a lawyer with you at mediation, it is not mandatory and several parties attend mediation without a lawyer present.  

I’m attending my mediation alone. What are my options?

If you decide to attend a mediation without a lawyer, we recommend that you at least consult a lawyer before and after the mediation.  The consultation before the mediation will assist to provide you with information as to your range of entitlement and options to consider.  The consultation after the mediation will be to assess whether the outcome reached is just and equitable, and to provide you with advice as to how to formalise this agreement to ensure that it is binding and enforceable. 

To assist people attending mediation without a lawyer, Bespoke Family Lawyers can also offer Mediation Coaching to help you feel confident and prepared for your mediation. Our coaching can help with:

• Gaining clarity of the mediation process and confidence
• Acknowledging & working through any emotional obstacles prior to your mediation
• Seeing the big picture, your goals, and the best interests of all parties involved
• Effective communication tools
• Providing you with options and strategies to consider throughout the mediation

Receiving mediation coaching prior to your mediation may assist you to attend your mediation with confidence and a plan as to how to proceed throughout the mediation and what offers to make or accept. 

However — please also keep in mind that there is no pressure on you to come to an agreement during the mediation.  We often find that people who attend mediations without a lawyer may agree to a solution which is not a good outcome for them, and this then makes it very difficult to re-negotiate this solution in the future.  It is far easier to hit the pause button, test solutions, consult with a lawyer, and then reconvene once you have received advice about the outcome you are considering. 

Mediation, with or without a lawyer, provides you with a platform to take the decision into your own hands and have constructive and productive discussions with your Ex.  

To find out more about our Mediation Coaching or how Bespoke Family Lawyers may be able to assist you before, during or after a mediation, book your free 30-minute CLARITY CALL. 

***Disclaimer***

This article is for general information purposes only and does not constitute legal advice or any other professional advice.