Have a family law mediation session coming up? Here’s what you can do to prepare for it so that you make the most of your session and ideally come out with an agreed parenting plan that won’t need litigating. You may already know that attempting dispute resolution is mandatory in our family court system before proceeding with applications for either parenting or financial/property matters. (Note it is compulsory but subject to various exceptions, including if family violence makes mediation unfeasible.) The aim is to try to help you and your ex come to a mediated agreement and avoid going to court. Preparing for parenting mediation is an important step.
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When you attend mediation, a trained mediator facilitates discussions between you and your ex in an impartial, calm manner. They won’t make any judgments or give any legal advice, but act more as a “chair” of a meeting in a safe, controlled environment. The mediator is trained to help people in conflict resolve their disputes, and is a lower cost, faster way to work out future family arrangements after separation. When it comes to making the most out of your parenting mediation, as you can imagine it pays to be well prepared. There’s practical preparation and there’s psychological preparation – here’s our round up of what you can do to improve your mediation experience and outcome.
1. Seek legal advice early
To make your mediation more effective, it’s best to seek legal advice first. This will ensure you understand options and potential outcomes and how the courts might handle your matter as well. When you are well informed and understand your legal position, you’ll be able to work with your mediator’s guidance but also your lawyer’s advice to ensure you’re making smart decisions.
2. Track your current arrangements
Before you attend mediation, track actual parenting time each parent has with the children and consider whether that’s been working for the children so far. You might also like to keep a parenting journal to note aspects of your situation that might be relevant in parenting mediation. When you attend mediation you can use this info to help support your negotiations.
3. Think about the provisions you want to include in a parenting plan
List all the most important issues and topics that will need to be discussed in working out your parenting plan. This will include all aspects of living arrangements and decisions about the children such as health, education and religion. You may need to work out holiday time and travel. There may be other important issues, such as potential relocation. Walking into mediation without a list will much more difficult so ensure you are clear about the provisions you want to include in your parenting plan.
4. The big issues
Think about priority, too. Which are the subjects that require a fast decision? Which are the most important in the long run? Which are the ones that you think will be the toughest to talk about?
5. Stay focused on your children’s needs
It’s all about reaching a decision that’s in the best interests of the children. You have to think of the mediation as a place to solve parenting issues, not apportion blame for who wrecked the marriage, etc. Although you want to take yours and your ex’s needs into account as well as your kids’, it’s not the place for rehashing marital problems. And remember that this is the time to discuss parenting issues only, so don’t discuss financial and property issues during your parenting mediation (unless of course it relates to the kids, such as whether the primary carer will stay in the family home and how that would work fairly).
6. Try to bring an open mind
Having an “open mind” in this context means accepting that you are unlikely to come out of mediation with everything you wanted. Being aware that you will have to compromise along the way, and be open to creative solutions. Being open minded means you’ll be more willing to brainstorm ideas until something workable is found, rather than being attached to the idea that there’s only one solution. Avoid walking in staunchly thinking about what’s “fair”.
7. Think about problems and possible solutions
Anticipate any issues that your ex may have with your proposals and plan potential solutions or compromise suggestions. Bear in mind you will need to be flexible.
8. Look for areas of agreement
Creative solutions to disputes may actually end up with a win-win compromise. Out of the box ideas might benefit both you and your spouse. It often helps to look for proposals that could be framed as win-wins. If you have agreed some ground before your mediation session, it will free up time to talk about the more serious disputes.
9. Bring options to the table
Consider in advance a range of options to help negotiation. Write out your proposals for various scenarios as a reference guide for sessions.
10. Gather paperwork
Your mediator will advise you of any specific documents needed. And if a court ordered you into dispute resolution, you’ll be informed what you need to bring to a session (eg affidavits, expert reports) or court documents to complete beforehand. But you can also present other documents at mediation to help show your ideas. You might bring calendars of parenting time schedules, multiple draft plans with your desired provisions, any relevant documents like work, school and extracurricular schedules, notes for yourself on the concerns and issues you have. It’s a good idea to prepare and bring a statement briefly telling your side and outlining what you seek.
11. Try to stay calm in the session
It’s inevitable to feel a range of emotions during mediation, from frustration to anger to resentment to sadness. However, it’s not going to be helpful to spend time expressing those emotions during your session. People recommend treating the mediation like a business meeting – which is of course much easier said than done! Rest assured though, the mediator will be trained in keeping things on track.
12. Keep the status quo for the duration
Don’t make mediation more difficult from the start by taking unilateral actions that might affect your ex without considering how it impacts them. For example, don’t unilaterally change the children’s school. It will only harm your ability to negotiate civilly.
13. Ask for more than what you want
Most people won’t settle on the first offer, so give yourself room to compromise.
14. Know your dealbreakers
It’s important to realise when you are better off agreeing to something that may not be exactly what you want, and when to refuse an offer. Your family lawyer can help you work out what a court would likely be to decide, as a guide. They can also let you know the likely costs of litigation (and time involved) that might mean it’s wiser to settle.
15. Be positive
Don’t engage in badmouthing your ex during mediation. Instead, acknowledge your ex’s strengths, and the fact that your kids need time with both of you. Only bring up valid concerns about your ex’s parenting.
16. Be aware that you may need to make painful decisions
Concessions aren’t always easy to make and may feel incredibly difficult. But nobody gets everything they want in a mediation – it’s about helping you both come out of it in the best position possible and working towards a compromise that’s in the best interests of the children.
17. Bring a future mindset
Focus on your financial and personal goals going forward and try to avoid dwelling on the past. The mediation (and the settlement generally) isn’t an opportunity to make someone pay for their behaviour during a marriage. It’s exclusively about moving forward.
18. Consider bringing your lawyer to the session
If in private mediation, your family lawyer can attend as well and represent you, if you like. You might find this helpful to receive “on the spot” advice. Your lawyer can also draft the agreement on the day so that it can be formalised quickly. Having your lawyer at your side means you will protect your own interests while ensuring the children’s best interests are prioritised.
19. Keep track of agreements reached in sessions
It’s a good idea to note down agreements reached and topics that need to be covered at a next session. This is also good to use as a reference as you proceed.
20. Ask about shuttle mediation
If safety at mediation is a concern, know that there are exemptions from attempting mediation. These include in circumstances where there has been family violence. But perhaps direct physical safety is not an issue but other things are, like intimidation. In that case, another option is shuttle mediation. This is where you and your ex are in separate meeting rooms for a session, while your mediator travels between you both. Ask your mediator what your options are here.
And that’s a wrap on our tips for parenting mediation. If you need any legal advice, or a referral to a really good mediator, please give Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law a call on (02) 6223 2400. Your first half hour call is free!
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
