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Below you can also find answers for some of the most commonly asked questions regarding family law:
What are the five steps of mediation?
These are typically the five steps involved in mediation:
- Initial Meeting
This is the first step to opening up a conversation where a dispute has occurred. The assigned mediator will introduce themselves to both parties and explain the role they will play, reassuring both parties that they will take an unbiased approach and set clear objectives of what they aim to achieve and what results they wish to obtain. The mediator may be given pre-mediation documents and this will prompt a universal statement outlining how they see the subject matter. To end this portion, the mediator will map out the action plan and what route they will take to get to an end goal that benefits the relevant party or parties.
- Detailing The Dispute
Once the mediator has outlined to each party their initial statement, they will require a comprehensive summary of each parties concerns and the nature of the dispute. It is crucial that the party relaying their side of the grievance are given adequate time to speak uninterrupted. The conversation needs to be intact to come to a practical agreement and if at any time the conversation transpires into arguing, the aim of mediation is lost.
- Acquiring Information
If the mediator hasn’t received it already, they will require a document detailing the facts and evidence of the dispute to aid with a conclusion and solution. Once this has been read, the mediator will query with each party individually the reasons they have acted in a certain manner, whether this is from a financial or emotional perspective, or why they have requested a particular outcome.
- Diagnosing The Issue
Although it may seem clear, it’s worth explaining what will happen during this step. The mediator will identify what they feel is the core of the issue. This decision will be based on the documents supplied to them and the briefs they have received.
Once the issues and subject matter have been discussed, a solution can begin forming. The process of both parties bargaining with one another can involve a variety of processes. These can be group processes, discussion groups and the inclusion of hypotheticals.
Typically, the mediator will propose a resolution and this gives both parties the opportunity to alter the proposed outcome until a sensible solution. Another option that is a possibility is that the mediator will meet confidentially with each party to look at negotiations. The discussions are private and confidential and give the respective parties the floor to discuss their emotions and fears; without judgement or potential hostility.
Who pays for a mediator in a divorce?
If you require a mediator in the process of a divorce, which is the case for many couples, the payment will come out of one or both participants as the payments are due. In some examples, one of the parties may offer to pay for it all, but this is really a case-by-case basis.
Do cases usually settle at mediation?
Although case-specific, most cases are able to be settled with a mediator present. To aid the decision as to whether the case will be resolved, it’s worth considering the client’s risk tolerance.
How does someone prepare for mediation?
Preparing for mediation can feel like an intimidating prospect and a big step to take, but there are things that can be put in place to help the process run smoothly.
- Go In With Clear Objectives
Identifying what would be an ideal outcome for you of the dispute is not only what you expect, but also what you hope to avoid. Whether this is slanderous/adverse publicity, or preventing a fractured business relationship; having concise aims and objectives can aid a mediation exponentially.
- Have a Willingness to Make The Initial Offer
There are studies that suggest the party that makes the initial offer typically come out more satisfied with the finalising settlement, as opposed to the party that withholds their offer. This process is called “anchoring” and helps define the negotiations that follow.
- Be Aware of All Potential Outcomes
It’s important to be frank and realistic that your case could go to court. Query this with your lawyer and factor this into the realm of possibilities during mediation, bearing this in mind when it comes to settlement terms.
- Ask For An Estimate
Obtaining an estimate of the costs of the litigation from your lawyer will be helpful in budgeting personally. Litigation costs are the price you will pay immediately upon the outcome that you don’t settle, so ensure you quantify these costs and factor this into your decision making at the Mediation.
- Use The Plenary Sessions
It is commonly the lawyers who primarily speak. But with this being said, it’s is more powerful if the parties speak and explain their positioning coming into the mediation. Direct your points from your personal perspective and don’t hesitate to show emotions (sadness, anger, frustration etc). Often, these expressions of authenticity (providing they are delivered in an appropriate and controlled manner) can help the counterparty understand and potentially shift points of view.
- Ensure There Are No Roadblocks To Committing To a Deal In Mediation
If the opposing party requires payment, organise this beforehand and in advance, and ensure you can provide proof of said funding. Settle with realistic parameters and not just the highest level that only benefits yourself or your organisation/company. If legal counsel is required, obtain this before the arranged mediation.
- Prepare To Speak To The Counterparty Face To Face
Although it may be an uncomfortable or disconcerting conversation, it can help break the deadlock. Make sure you do some preparation into what you may want to say and how you can react accordingly.
- Consider How You Will Present Your Case
Going into these meetings with extraordinary demands will mean you are likely to come out disappointed. Explain your position and give detail into why you hold this positioning, so the counterparty can get to grips with your personal reasoning.
This could greatly increase your chances of your demands being considered and accepted. Make sure your statements are able to be backed up and solidified with congruent statements and facts. If you do feel the need to resort to bottom lin offers, use this as a last resort as they are usually unhelpful early on. Having solidified reasoning will help your counterparty understand why you have resorted to these measures.
- Your Mediator is an Unbiased Colleague, Treat Them As Such
The mediator holds no preconceived notions or judgements towards your case and is impartial. So use them to confide in and trust that you can speak to them in confidence, these conversations are completely confidential and private. Explain how you are finding the settlement and give them your ideas, it is a safe space to express these thoughts.