Guidelines for Family Mediation
The guidelines for mediation are pretty simple and straight forward. We often repeat and re-enforce these guidelines to clients from the first meeting and in the mediation sessions as well.
Common Courtesy
Clients are asked to be respectful towards one another throughout the process. This does not mean you have to be friends, however, you can still have a civil discussion in a safe environment with the hopes of reaching a mutual agreement. Name-calling or derogatory comments will not be accepted. Interrupting each other mid-conversation is not acceptable either, even when you are burning to respond, you still have to let the other party finish their train of thought. We understand it is difficult to listen, particularly when you believe the other party is saying things that are inaccurate, however exercising restraint is encouraged.
Yelling, screaming and creating an environment where another party might feel intimidated will not be tolerated during the mediation process and often this leads to a session coming to an abrupt halt.
Future Focus
We acknowledge that the past is important and that it informs the future. We also acknowledge that some wounds might still be fresh and mediation might be the first forum for parties to have a proper discussion about some of the events that might have occurred. It is however important that the mediation process is future focussed. The intake/assessment sessions that clients attend initially are not only for assessing the matter, but they are also a great opportunity to provide some insight into the matters in dispute to the mediator so the mediator is well aware at the mediation stage. This, therefore, means in the mediation session when a matter is brought up, it is to figure out how that matter can be resolved moving forward rather than going back and forth on the facts or dwelling on the details with no intention to come up with a solution.
Child focus on parenting mediation matters
It is easy to be caught up in a web of tit for tat or trying to hurt each other as ex-partners. Sometimes you want to prove each other wrong and everything your ex-partner does is an issue. When we are caught up in all these different emotions and feelings, we might end up forgetting about what the child needs. The child and their needs should always be the focal point of your discussion and you might need to remind yourself of this from time to time. Emotional intelligence and empathy are required here. If you were your child, how do you think you would feel if you were to observe the mediation sessions and your approach? Why do you think it’s important for the other parent to spend time or not to spend time with the child? Is your decision based on what the child actually needs or is it because you are hurting and your decision is your way of validating your feelings and emotions?
We encourage parents to separate their emotions and their intimate partner relationship from the parenting relationship. Hard ask, very hard ask and understandably so. However, despite your intimate partner relationship ending, the parent-child relationship still has to go on and thrive, where safe to do so. You cannot automatically equate a bad partner to a bad parent. Some people are terrible partners but can be fantastic parents and others can be terrible at both. You have to take a step back and think rationally about what your child needs and how each parent can contribute to achieving that end goal in assuring the well-being of your child.
No pressure to make decisions
Intention to negotiate is a vital key to any mediation. Mediation might be unsuitable where parties are clearly positional and will not consider the other party’s point of view at all.
Parties are provided with the opportunity to discuss items on their agenda and to explore possible solutions. Parties might have differing views of what the resolution should look like and in that case, they will be given a further opportunity to discuss and workshop how they can resolve the matters. In some cases, parties manage to reach a mutual agreement and in other cases, even after considerable amounts of time discussing, the parties might find it difficult to reach mutual ground.
Mediators will facilitate the process and will tease out relevant information from the clients to provide clarity and direction. Mediators will also provide information and resources throughout the process. Mediators do not force parties to make a decision. If parties are not ready to make a decision, they are just not ready and that is acceptable. It is perfectly fine for parties to ‘park’ matters to enable them to think through the issues between mediation sessions. This might be a good opportunity to consult with lawyers or any other significant people that might need to have input in the decision-making process. At times this includes new partners.
Parties can book more than one session to resolve their matters and as a general rule, it is ideal to have at least two sessions of about 2-3 hours max. Trying to cram everything in one excessively long session is not ideal. That break to think through things between sessions can do a lot of good in your decision-making process.
Another useful and practical tool is trialling some of the proposals between sessions and see if in practice things will work for your family or not. You will then come back to mediation to discuss outcomes and a way forward.
Where parties have been to a few mediation sessions and are still not able to reach any agreements and there is no end in sight, the mediator might conclude that a certificate to deal with the matter in the Family Courts might be the next best avenue.
Breaks
Parties and mediators alike can ask for a break during the process. Usually, this is between 5 to 10 mins. During the breaks, the process is put on hold and each party has their own space without the mediator present. For those parties that get overwhelmed, it is encouraged to use a break to clear your mind. Other parties rely upon the professional expertise of a lawyer or other professionals to make a final decision therefore you can use this time to consult.
Private Time
Parties and mediators alike can call for private time. Usually, mediators initiate this time to check in on the clients. Private time is different from a break, as this is still an active part of the mediation process where the mediator speaks to each party separately. Private sessions are confidential.
Mediator neutrality and impartiality
Mediators are dedicated to assisting you and your family to achieve the best possible outcome. We do not have a vested interest in each party’s narrative nor do we wish for one party to be more successful than the other. Reaching mutual agreements are the keywords for us. We want each party to be heard and to contribute equally to the decision-making process and in facilitating the process the aim is to achieve that balance. Before jotting down any agreements we will check in with each party to confirm if everyone is on board with the final decisions.
Legal Advice
Legal advice is always recommended for parties to know where they stand legally and for parties to get insight into similar cases and the outcomes. For property matters, legal advice is unavoidable, as this is a very technical area of family law and in most cases once finalised, irreversible. Getting legal advice does not mean that your matter will end up in the courts. Lawyers have a wealth of knowledge and might help you consider some things you might never have thought of before.
Confidentiality
Mediation sessions are confidential as far as the law permits. Where mandatory reporting is required, usually where there is evidence of imminent harm to a person or illegal activity, mandatory reporting requirements take precedence over the confidentiality rule.
Admissions and proposals at mediation cannot be used as evidence in the court, i.e “they said this in mediation”. Parties are prohibited from recording the mediation sessions. Where mediation is conducted virtually, parties have to be in a private space to ensure that only parties to the mediation are included in the conversation and that there’s no one else listening in. Having children present during the process is not acceptable as well, for different reasons.
These are some of the guidelines that we follow during the mediation process. This list is not exhaustive. If you have any questions about these and other matters feel free to contact us.