Ten Tips for a Successful Family Law Mediation – or How to Get More Bang for your Mediation Buck

familydisputemediation

The prevalence of mediations in family law matters has increased in the last five years due to many factors. The status of a mediation in a family law matter has risen to the status of a prescribed pre-action procedure. A matter being listed for hearing without a mediation having taken place is the exception.

The culture and standard of mediations in Australia is of a world class level and is used as a model in many foreign jurisdictions. As a result, at least in the family law jurisdiction, there are many skilled and experienced mediators available to assist settle your dispute and, accordingly, the fee for a full day mediation is usually in the range of $2500 to $5000. But are we, as lawyers representing our clients in mediations, becoming complacent? Are we, as lawyers, approaching the mediation process as merely a means to an end? Are our clients getting bang for their mediation buck?

As part of my usual mediation process I conduct pre-mediation sessions or intake sessions with the clients individually a few days before the actual mediation. Often I am asked by the client “What should I do ?” “Do I need to bring anything ?”. I have also observed that there are common things that were not done by a legal representative or a client that contributed to the demise of the mediation.

From this I have developed my Ten Favourite Tips for a successful mediation. These are;

1. Get into the right head space

“Settlement” is not a measurement of success. A successful mediation is like a fantastic cake. It takes all the right ingredients, the right measurements, the right amount of time in the oven and a little bit of finesse (love). Success might mean that even though the dispute did not settle, issues are narrowed, cases are better understood or there might be interim agreements reached with a view to a further mediation.

2. Preparing to settle

Don’t wince but there is no better truism then that well worn saying; failing to prepare is preparing to fail.

3. The right mediator at the right time

I think mediators are sometimes selected by reference to the following criteria (and rank)

  1. Seniority and trust
  2. Knowledge of law in the area of dispute
  3. Mediation skills

I think it ought to be in the reverse rank.

4. Preparation Part A – intelligence gathering / reconnaissance/logistics/briefing

You and the client should feel comfortable in your environment and often this comfort comes from knowing your prospective mediation environment, right down to where the quickest and best coffee can be sourced ! Don’t think this is relevant ? Then consider sitting through an mediation for  hours feeling uncomfortable, without good coffee and no convenient access to your usual computing paraphernalia.

5. Sharpening the tools pre-mediation

Have all your discovery documents available.  Have drafts of Terms of Settlement, Consent Orders, Asset & Liability Spreadsheets, Outline of Position, Calendars (School Holidays) documents in quintuplicate. Have relevant agency information such as Child Support, Relationship Australia etc on hand. Know the availability of experts (family report writers, accountants etc) to prepare reports and the cost if that is a fall back position.  Most importantly, be able to tell your client exactly what the process has cost her/him to date and have estimates of future costs ready.

6. Mediation conduct / etiquette

It is better to remain silent and be considered a fool than open your mouth and confirm it. Check your attitude at the door. Keep emotions in check. Save theatrics for auditions. Let the mediator earn their fee and model appropriate behaviour. Don’t engage in theatrics / don’t get sucked in by counter-theatrics . Use Schedule 1 of FLR as reference point. Be patient - Don’t run at the first impasse.

7. Mediation conduct / representations & ethics

Be careful about “That’s our final offer” representations. They could be construed as misleading.  Legal Services Commissioner v Mullins [2006] LPT 012. Don’t engage in any conduct which would jeopardise your ability to earn an income.

8. /Sealing the deal

Heads or do the entire deal [Masters v. Cameron (1954) 91 CLR 353]. The enforceability of an agreement struck at a mediation and tips and traps to avoid will be the topic of my next newsletter.

9. Dotting the “I”s crossing the “t”s

Immediately follow up all loose ends, enter bring-ups into diaries, Get orders filed, obtain sealed orders. Most importantly sit down with client and check that all matters have been finalised properly.

10. Continuing to grow

Litigation does not mean there is a determination of a winner or a loser but rather a determination of an appropriate outcome to a dispute between litigants. Private mediation was relatively rare in FLA jurisdiction. It is now rare to expect a trial date without having attempted mediation. The increased pressure on Court time = the increased justification for a properly prepared mediation at the outset. Seek out CPDs on negotiation affectiveness and you will become the complete litigator.

I hope you find these tips helpful.