Compared to a hearing, attending a Mediation might seem like a piece of cake. There’s no cranky Judge throwing curly questions at you, you can stay comfortably in your seat and there are often nice snacks.
But, as the Courts become slower and less certain, alternative dispute resolution processes are becoming less ‘alternative’ and more the standard practice in a Family Law matter.
So, how can you maximise your client’s results at a Family Law Mediation?
1. Be Prepared
Although you won’t have a Judge throwing those curly questions at you, or requesting a copy of the only document you can’t seem to lay your hands on, you need to know your matter and file well.
You must understand your client’s position on each issue and how they are willing for that issue to be resolved during the Mediation in order to guide them to pursue and secure the best outcome available.
2. Prepare Your Client
You should educate your client about what to expect at Mediation so that they are as relaxed and confident as possible. Check that they know where to park and that they have arranged for someone else to collect the kids from school in case they are delayed.
Explain to them that they will need to consider compromising their position in order to reach an agreement. Most importantly, ensure your client has considered how they might compromise their position during the Mediation: what is their BATNA (Best Alternative to a Negotiated Agreement eg. to continue negotiations by correspondence and/or to file Court proceedings), their WATNA (Worst Alternative to a Negotiated Agreement (eg. Giving up) and the costs implications of each alternative.
3. Understand What Your Role is During Mediation
At the outset of the Mediation, the Mediator may inform you that you are there, not as an advocate, but as an adviser for your client.
But what if your client has instructed you to give their Opening Statement as they are too nervous?
What if the other party asks your client a question and, unsure of how to respond, your client turns to you?
Do you refuse to advocate for your client and tell them they are going to have to speak up?
Or can you help your client out by responding directly to the other party?
Be guided by the scope of your instructions and your professional obligations.
For example, consider Rule 33 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.
4. Don't Forget the Art Persuasion
While you don’t need to persuade a Judge, you need to persuade the other party that your position is right, or at least that theirs is not. Don’t forget that the best approach during Mediation is to be tough on the issues, but not on the person.
4. Don't Walk Away Without Securing What You Went For
If the parties reach agreement exactly in the terms that you and your client had hoped for, are you prepared to leave the Mediation in the hope that the other party won’t change their mind before a binding agreement/consent orders are executed?
On some occasions, in the spirit of goodwill, agreements are made at Mediation which subsequently fall over as parties retreat to their corners of the ring.
Consider preparing a draft Financial Agreement/Consent Orders to be negotiated prior to Mediation, so that the mediated terms can be neatly inserted into the document and execution can take place immediately following the conclusion of the Mediation.