Ten Top Tips for Better Mediation Outcomes

3. DO: Get advice from qualified experts

Do get advice to make sure you are fully informed about your rights and obligations. Who you get advice from depends on the type of dispute you have.  Often it will be a lawyer.

A question that many people have is do I go to a lawyer first or a mediator?

The legal advice you get will only be as good as the “instructions” you provide. Instructions in legal jargon which means the information and outcomes that you tell the lawyer about.  The process of giving the lawyer all the information they need, especially in a family law property settlement, can be quite expensive.  During your pre-mediation session with your Mediator, they will help you to prepare the information needed so that when you go to a lawyer for advice you give them good quality information and have a better chance of getting good quality advice. We recommend you ask for your advice in writing.

If the dispute is in the workplace you may need to get advice from HR or your union. Check what resources are available.

In other contexts, it may be your local council, a finance provider, a financial advisor or another service that can assist you to understand your rights and obligations or consider your options.  Again your mediator should be able to refer you to suitable services or help you to identify services you already have access to.  

The saying “knowledge is power” is true but only if what you know is accurate rather than something you think you know. With the internet, it is easy to research but not always easy to work out the quality of the answers you come up with. Australia’s legal system is different to that of other countries so it is important that you get advice from experts in Australia, not from other countries. 

In family law situations your lawyer will be able to provide legal advice on the likely range of outcomes if your case went to court and the likely cost of court proceedings. These can only ever be best guess estimates as there are too many variables to come down to a single outcome with any accuracy. That means that within a certain range whatever works best for your family is going to be considered fair and equitable. Your mediator will usually encourage you to consult with your lawyer on the settlement offer and they can help with applying for consent orders (a way to get a binding court order that is administrative and doesn’t require you to go to court).  Some people are willing to bear the additional expense of having their lawyers present with them throughout the mediation and that can be accommodated.

4. DON’T: Expect the mediator to decide for you

A mediator is an independent third party who facilitates the negotiation process. Their job is to remain impartial and keep the process safe, respectful and productive.

The styles of mediation vary from transformative mediation where the mediation isn’t about a specific issue but rather focused on helping to transform your relationship with another person or people.

Facilitative mediation is an approach that is more focused on problem-solving and reaching an agreement on how to resolve specific issues such as how to work together, co-parenting a child or dividing up your assets and debts after separation. The mediator won’t give their opinion or tell you what you should do.

Evaluative mediation is a style where the mediator may be more directive and give you more direction and opinion. It is important to make sure that the mediator is actually qualified and knowledgeable if you do want to use this type of mediation.  Also, remember that the mediator can’t make you agree to anything. They do not have the power to impose a decision on you and most will not try.  If you feel like your mediator is trying to pressure you into an agreement, speak up and tell them what you need. You may need more time, more information or more advice before deciding. That is OK too.

Your mediator can not provide you with independent legal advice, even in evaluative mediation. It is unethical for a lawyer to advise both people who are in a dispute with each other so make sure you speak with your own advisor if you have any doubts about the best course of action for you.

5. DO: Engage in the mediation process

Mediation is a process of negotiation and decision making and that means that the people who have to live with the agreement need to be present at the mediation. You can’t send someone else!

There are lots of flexible ways that you can participate now so if you are concerned about safety, would rather not travel or the person you have a dispute with lives a long way away you can mediate remotely.  Many mediators have learned how to facilitate mediation via video meeting and many clients prefer that approach to meeting face to face in a room.

Mediation is a voluntary process. You can always refuse however depending on the circumstances there may be consequences for refusing.

This is particularly the case in Family Law situations. There is a requirement to participate in pre-action procedures. That includes Family Dispute Resolution for children’s matters and ideally for property matters as well.

If you refuse the mediator will provide a section 60i Certificate which tells the court that you have done that. The court has the power to order you back to mediation and can make an order requiring you to pay costs associated with court actions.

 Even if you think it isn’t going to be possible to reach an agreement, speak with the mediator and tell them your concerns.

In the event that proceedings end up being filed in the court, the court may take into account a party’s decision to not attend family dispute resolution when deciding whether to make a costs order against them (being ordered to pay the other person’s legal costs) or in ordering you back to mediation.

6. DON’T: Be intimidated by mediation

Due to the confidential nature of mediation, there isn’t as much information out there as there could be and some of the examples provided in movies are just plain wrong. There won’t be any yelling, screaming or intimidation if you are working with a qualified mediator.  Or at least if someone loses their cool the mediator will take control and shut that down immediately.

Mediation is a form of facilitated negotiation. The mediator’s job is to help you safely discuss the issues, consider your options and come up with an acceptable solution that you are both willing to agree to.  The mediator will at some stage have a private session to check in with you if you are not doing “shuttle” mediation where you are in separate rooms. You can also ask for a break, time to call your advisor or anything else you need during the process.

Some mediators think it is their job to keep you there until an agreement can be reached. If you end up with one of these types of mediators don’t be afraid to ask them to end the session and reschedule when you are feeling fresher and have had time to reflect on what has been discussed and proposed. It’s your mediation and you have to live with the consequences of the agreement you reach and put into effect so don’t be intimidated. Speak up and tell the mediator what you need.

7. DO: Be prepared to discuss your interests

If you could get everything on your wish list agreed to by the other person you probably wouldn’t be in mediation. The mediation process is designed to help you both to identify your interests, and what really matters to you.  Once those are understood by you both there is usually a way to get them met.

For example, you might want 50/50 time with your child.  That is a position. It is what you want and if the other person doesn’t agree there will have to be a compromise. You can argue about that and whoever is stronger or more determined is likely to win and a compromise will be reached.

With a well-trained mediator that won’t be the approach. They will ask you to explain to the other side why 50/50 is important to you. There are probably a couple of reasons.  You may not want to be seen as the “lesser” parent. You may miss your child terribly and think that 50/50 is the fairest outcome if you can’t be with them all the time. You may think that is what your child wants.  You may be worried about affording child support and think that will prevent the need for it.  That last point isn’t actually true as time is only one factor used to calculate child support.

Some of the reasons you have reached your position may be driven by things that have nothing to do with your child’s best interests and developmental needs. If that is the case the mediator will help you to consider the impact of what is being proposed on your child. Especially if your child is very young and having a secure attachment to caregivers is vital for normal emotional and relational development. Ask your mediator about what the research tells us about children’s early developmental needs.

That example is for family law mediation but the same principle of looking below the positions to what really matters to you, your interests, is how mediators help to break deadlocks and create the environment for you to come up with creative ways to get what you need without giving up what you can’t live without.

At the other end of that collaborative process, there will be a solution that is different from your opening position but hopefully, you won’t be thinking in terms of compromise or win/lose by then.

If you are working with a mediator who goes straight to positional bargaining, trying to get you to compromise with no exploration of the issues and what really matters to each of you they may be lacking training in collaborative negotiation.

Concessions and compromise are some of the building blocks of consensus so please go to mediation with an open mind and be willing to speak up about what you need but also listen to the other side when they express their needs and concerns. The fact that you think they are wrong doesn’t mean that their concerns are not genuine or something that has to be addressed in some way that is acceptable to them. 

8. DON’T: Lie or mislead

Mediation is a process that relies on building trust that you will each comply with what you agree and that the information you provide is truthful.

In most cases, if you reach an agreement that is made legally binding but is based on false or misleading information the orders or contract may be challenged and overturned. You’d be back to a much worse situation than you are now. 

Be truthful about the facts, to the best of your ability. Don’t make “ambit claims” and take extreme positions in order to be able to compromise as you may find that it breaches trust so much you won’t get anywhere in the mediation and end up wasting a lot of time and money in court because of your posturing.

In Family Law Mediation because it happens in the shadow of the court you have the same duty of disclosure obligations that you would have if you went to court.  Being truthful and genuine is going to give you the best result in mediation.  

9. DO: Consider your proposals ahead of time

The mediator will have a pre-mediation meeting or meetings with you. These are private and confidential and are used to make sure that mediation is appropriate and to help you to prepare for the mediation sessions. 

They will help you to consider your options and potentially to develop some proposals. If you are not prepared for that they will encourage you to speak with an advisor and get the information you need to develop your proposals. Again they will be working from an interests-based perspective (what really matters to you) so will be encouraging you to think about a variety of ways you could get what you need from the situation.

In facilitative, narrative or transformative mediation you will usually not be asked to exchange proposals in advance because the options and proposals will emerge out of the discussion. In evaluative mediation, the mediator may ask for position papers or proposals to be exchanged in advance. This tends to be a more formal style of mediation that is a bit more like positional bargaining with a focus on compromise and nutting out an agreement to avoid court compared to other styles of mediation which are more focused on collaboration and reaching an agreement that you both find meets your most important needs. 

That said, in most cases, there have been proposals and offers made. The mediator will definitely ask you what you think the other side wants and your thoughts on their proposals, if they have been made, as part of your preparation.

When we are in conflict it is easy to underestimate or overestimate the strengths of the other person’s position and likewise our own. Taking through prior proposals with your mediator can help to identify gaps in your understanding of the legal or other rights that relate to your situation and can provide the opportunity to get some more advice before your mediation session.

10. DON’T: Think of it as winning or losing

Mediation is a voluntary but often required first step in resolving a dispute. Depending on the situation you may be required or strongly encouraged to participate but you can never be required to agree to any specific outcome of mediation.

That is what is voluntary about it. The mediator can not impose an outcome on you, even in evaluative mediation where they freely give their opinions. If you don’t agree, you can say “No deal!”. 

When thinking about whether to accept a proposal remember to calculate the tangible and intangible costs and benefits of not reaching an agreement in mediation.  If you can’t resolve the dispute what happens next? If you don’t know ask your mediator and your lawyer.

Lawyer negotiations even if you don’t go to court can quickly balloon into tens of thousands of dollars and extend over many months. Going to court, even as a self-represented litigant, is expensive in terms of time, money, distraction and the emotional toll it takes.