Family law mediation is a significant event in the course of a separation.
While it could take place early, mediation is often after months of document gathering, advice, and possible Court hearings.
So it’s no surprise that adequately preparing for mediation is essential.
Below we set out 5 key discussions you should have with your family lawyers before you get to mediation. Making sure these happen beforehand will help reduce the pressure on mediation day, help your lawyer prepare the best they can, and make good decisions along the way.
What Will Happen On Mediation Day?
Only a few people (other than lawyers) attend multiple mediations throughout their lives.
Most people won’t ever attend a formal mediation.
Those that do will probably only attend one.
As a result, the process is probably going to be a bit unknown and alien to you.
Most lawyers will do this anyway, but in case they don’t, ask your family lawyer to run you through the process of the day. Ask questions to help put you at ease with the format, the options for progress, the mediator and their role
Who is the mediator? Have you used them before – what are they like? Who will speak first? Do I have to say anything? Can I ask for a break? What is a “good” outcome for mediation? How long will it take?
Anything you can do to fill out your knowledge of how things will (probably) go on the day of mediation will ultimately help you be more settled and focused on the day.
What are my Current Costs, and What will they be if we Go to Trial?
Costs are obviously a significant part of separation. Unfortunately, they often take a back seat until a bit too late in the piece. As a result, you can get a surprise, and surprises are nobody’s friend when it comes to mediation and trial.
Depending on your arrangements with your lawyer, unless you already have a good idea of these things, there are a couple of questions worth asking about the financial commitments of a protracted dispute. The most important are:
- How much have I spent in legal fees so far (whether billed or not yet billed)?
- If the matter does not resolve at mediation, how much more am I likely to spend going forward?
Being armed with this information helps you think about your negotiation position. It also helps you place a value on the certainty of a negotiated outcome should one be possible.
Understand my Negotiables and Non-Negotiables – Desired Outcomes
Generally speaking, most litigation processes are designed to polarise everybody onto opposite ends of every question.
So if you really want ABC, then typically your ex’s lawyers will have argued why you shouldn’t get ABC.
But what if ABC isn’t really that important to you? Sure, in an ideal world, it would be good to get ABC as part of your negotiated outcome, but maybe you’re pretty fine either way.
In that case, it’s not really worth spending a disproportionate amount of time and energy arguing about ABC.
That’s especially true if ABC might be quite valuable or important to your ex.
On the other hand, some things will probably be an absolute deal-breaker. That might be things like sentimental items and pets, or perhaps it is a minimum amount of spousal maintenance you need to survive. If they are a deal breaker for your ex, too, then it’s going to be important for your lawyer to understand why this point is crucial for you. This allows your lawyer to think about how best to deal with the inevitable discussions on the day around that topic.
Sit down with your lawyer (or exchange a few emails) so that they are well informed about the things that matter most, the things that matter least, and why. If they think something will be a hard sell on mediation day, they’ll let you know.
Best and Worse Case Alternatives to a Negotiated Outcome
Often during mediation you can be presented with an offer that is “kind of okay” but not exactly deep into the territory where you would be happy to accept it.
Faced with such a situation, it is good to appreciate where things could go if you do not settle. As we mentioned before, there is value in the certainty of a negotiated outcome, even if it is hard to place a dollar figure on.
So when preparing for mediation, ask your lawyers to help you understand:
- What’s the worst that could happen if this goes all the way to trial;
- What’s the best that could happen if this goes all the way to trial.
Then, at least, you can weigh up an offer on a given topic against those boundaries. If it’s closer to one than the other, that could help you decide with context.
If We Don’t Settle, What’s Next?
The answer to this question will depend on how far through the process you are when you mediate.
For many people, there is an understandably strong desire to be done with their previous relationship, formalise an agreement and move on with their new beginnings.
So if you still could have 18 months of litigation ahead should the matter not resolve, then that’s worth factoring into your decision-making.
Of course, there can always be more negotiations down the track, so deciding not to settle at mediation does not inevitably lock you into all the following steps. Knowing what’s ahead and how long it might take is just a good idea.
If you head into mediation with at least these topics under your belt, you’ll be in a good place to make solid decisions on the day and hopefully arrive at an outcome that can see you out the other side of the separation in short order.
If you need help with your family law matter (or an upcoming mediation), don’t hesitate to reach out to TWC’s family law team on 07 5522 5777.