From Belinda Crawford at CPD by the Sea, Thailand 2024, a conference for Family Law Lawyers.
I recently had the pleasure of attending Belinda Crawford’s presentation in April 2024 at CPD by the Sea in Thailand, where she shared her profound knowledge and expertise on the art of mediation. Belinda, a seasoned mediator with Separation Solutions, offered a wealth of practical advice that resonated deeply with me, particularly because I always encourage clients to engage fully in mediation.
Mediation, as many of you know, is a significant investment—not just of financial resources but of emotional and physical energy too. It is a pivotal opportunity to resolve conflicts in a less adversarial environment than a courtroom. However, to truly capitalise on its benefits, thorough preparation is crucial. A poorly prepared mediation not only diminishes the potential outcomes but also results in wasted time and resources. In this blog, I want to pass along the essential tips from Belinda’s presentation to ensure that you are fully equipped to make your mediation experience as productive and effective as possible.
Mediation Methods
Mediation can be conducted via video conference or in person, each offering distinct advantages. Video conferencing provides a safer environment when one party may feel intimidated or fearful of the other. In contrast, in-person sessions can foster better communication and potentially bring closure to disputes. Safety should always be the priority. For video conferences, it’s crucial to have a private space and reliable technology to communicate effectively with the mediator. Ensure that you have a stable internet connection to avoid delays and maintain the effectiveness of the session.
Mediations are available in half-day or full-day formats, with the latter often preferred for more comprehensive discussions. However, a half-day may be chosen for cost efficiency. Regardless of the format, Bilson Law supports our clients every step of the way, ensuring that safety concerns are addressed, and that the technology setup is conducive to a successful mediation.
Preparation and Documentation
Thorough preparation is essential. All relevant valuations and reports should be ready. If asset values are disputed, both parties should agree on a valuer and jointly request a valuation, following the formal requirements outlined in the FCFCOA rules. At Bilson Law, we assist our clients in gathering all necessary documentation and valuations well in advance.
Prior to the mediation, articulate your ideal and worst-case scenarios, review your proposals, and consider those of the opposing party. Before attending the mediation intake appointment, discuss your financial standing with your bank, accountant and if applicable, mortgage broker and business advisor.
Organise all necessary documentation and ensure it is non-inflammatory when submitted to the mediator.
Timing and Intake
There is no need to rush the booking of mediation. Prioritising adequate preparation time is crucial. The intake process with the mediator is a crucial first step. It’s important to be open and honest during this phase to set a strong foundation for the mediation.
Reality Testing
It is essential to rigorously test your position with the help of your legal counsel prior to the mediation. We often encounter situations where clients feel strongly about their perspectives and may inadvertently pressure their lawyers to champion these views. However, it is essential for the effectiveness of the mediation process that the relationship between a lawyer and their client is collaborative rather than merely confirmatory.
Resolutions sought should be satisfactory but also sustainable and legally sound. Having a legally sound position will maximise the effectiveness of the mediation process and will enhance the chances of a favourable outcome.
Disclosure
Ensure comprehensive and accurate disclosure is provided. Parties often fail to disclose details such as superannuation from the beginning of the relationship through to separation and its current status. Such omissions can significantly delay mediation. Reassess and ensure your disclosures reflect your true financial contributions and positions.
Language and Logistics
Use calm, respectful language both during and prior to mediation. Logistics such as parking and understanding the session’s duration should be considered in advance and discussed with your advisor.
Engagement and Attitude
Mediation is your chance to engage in open discussions focused on future resolutions rather than past conflicts. As you enter mediation, maintain a positive attitude and fully commit to the process for the best possible outcomes.
Having your own private professional support professional is a must. Ensure that you have a counsellor to process the hurt and trauma from the relationship. This will enable you to address emotional and psychological relationship aspects external to the mediation session.
Support People
Generally, it is advisable to proceed without a support person in mediation sessions. However, there are exceptions where they can be beneficial, if agreed. It’s important that a support person does not exacerbate the issues, as their involvement should aid in finding a resolution, not complicating it further. If a support person is involved, it’s imperative that these individuals contribute positively to the mediation process and their attendance should be agreed by all parties.
Outcome Reality and Next Steps
Be mindful of the costs if no resolution is reached. Consider both tangible and intangible costs, such as emotional strain, time off work, childcare, and legal fees.
In the realm of family law, it’s crucial for clients to think creatively about their options if initial mediation efforts don’t lead to a resolution. Sometimes, despite the best preparations and intentions, parties may find themselves at an impasse. When this occurs, it’s important not to view it as a failure, but as an opportunity to explore alternative dispute resolution methods.
One such option is arbitration. Unlike mediation, arbitration involves a neutral third party making a decision after considering the arguments and evidence from both sides. This can be a faster, more cost-effective alternative to going to court and allows the parties to choose an expert in their specific legal issues.
Parenting Coordination is another route, particularly useful in high-conflict cases involving child/parenting issues. A Parenting Coordinator helps manage ongoing issues in high-conflict parenting cases. This role involves a more direct management of interactions between parties and can help enforce parenting plans and court orders, thus minimising conflict and stress on the children.
Lastly, considering further mediation sessions might also be beneficial. Sometimes multiple sessions are needed as part of a longer negotiation process, especially as circumstances and attitudes evolve. Further mediation can help parties move closer to a compromise or find new areas of agreement as they become more accustomed to the mediation process.
In all cases, moving forward after an unsuccessful mediation requires flexibility, openness to alternative approaches, and a continued commitment to resolving disputes constructively.
Acknowledgment:
I would like to extend my heartfelt thanks to Belinda Crawford, Mediator at Separation Solutions, for her enlightening presentation at CPD by the Sea in Thailand in April 2024.
Belinda Crawford’s insights remind us of the importance of preparation, the right approach, and the continuous support we strive to provide at Bilson Law, ensuring that every mediation is a step forward for our clients.
