Tips for better mediations in family law

1. How can you explain mediation to a client?

Mediation is assisted decision making. The mediator does not impose a decision. The mediator is there to facilitate an agreement, with the help of any lawyers present. They are independent and neutral. The process is confidential. How a mediation unfolds is up to the mediator, shaped by the attitudes and offers made by the clients on the day.

2. How can you assist the mediator before the mediation?

• send them your documents in good time so that they can consider them carefully
• Check Orders for what documents you must send to the mediator
• Set out for the mediator any offers and counter offers that have been made so far
• Make it clear what your client’s proposal is for the purposes of the mediation
• If it is different to what has been filed in court or most recently set out in any offer, make that clear to the other lawyer before the mediation (e.g. your client always wanted to keep the house and now they are proposing a sale). Make sure you inform your client of the implications of the change to the desired outcome (e.g. capital gains tax will now be a liability which may require expert input).
• Not all mediations are evaluative. That is, the mediator may see their role as purely facilitative and they will decline to indicate their view of the likely outcome in court. If you would like the mediator to inform the clients of their view, check with the mediator that they are prepared to give that information before you retain them.

3. How can you prepare your client for mediation?

• Recommend that they listen more than they speak, particularly during any joint sessions.
• Inform your client that mediation requires a lot of patience. They can bring books to read or do easy work whilst waiting for offers or documents to be drafted. I’ve seen clients knit and one who did pilates in the breakout room
• If the mediation is online, ensure that they are comfortable with using the electronic platform and suggest they have a trial run using it. They do not need IT glitches as an added source of anxiety
• Ask them whether they want a support person there. If you know the support person would be more of a hindrance, suggest that the client call them during the mediation instead
• Ask your client if the mediator wants them to prepare an Opening Statement and listen to or read it before the mediation and suggest any necessary changes. You don’t need surprises about what a client wants and setting the right tone at the start of a mediation is important
• Lawyers are (or should be), very alive to consider whether the two (or more) clients need to be in separate rooms during the mediation. It is best to ask your client how comfortable they are with being in the same room as the other client
• Consider whether your client would perform better if they did not see the other client on the screen or if they would not want the other client to see them, either on the screen or at the mediation venue
• Make sure that your client understands their own offers or positions set out in court documents
• Ask them to ensure that there are no distractions during the mediation. If they are at home online, there should be no deliveries, noisy building works or errands to attend to. If the mediation is in person, arrangements should be made for the collection of children
• Any children should not be within earshot of the discussions during a mediation
• The same applies to new partners (unless they are a declared support person).

4. How you can assist on the day of the mediation?

• If you think the mediator is overlooking an important fact or consequence of a proposal, please voice your concerns to the mediator when the concern first arises
• If you think that ignoring certain items on the balance sheet is going to irritate your client, inform the mediator and of the reasons why
• Do not become preoccupied with how far each client has moved if one of them has not started from a sensible point. Look instead at how far each party has to go to the point of agreement
• Think about the ramifications of splitting the difference for your client before you agree to it. It is often a lazy solution
• If the terms or structure of any settlement requires several documents or has some complexity, consider preparing drafts beforehand such as Financial Agreements for spouse maintenance or Child Support Agreements and Deeds of Release
• Check any documents submitted to you by the other lawyer during a mediation very carefully. Take the time to do so even if it is late and your client is getting impatient.
• If you have been working on documents with the other lawyer for sometime and they submit a different version during the mediation, and say it is the same as discussed but in a different form, please check it carefully
• Consider whether you want the mediator to go through any draft settlement documents
• Remember that the wording will be construed strictly once orders are made or Agreements are signed. Do not to rely on the assumption that everyone knows what was intended by a phrase or clause and that all parties will hold that view and work together when disputes arise about implementation. It is always best to be very clear in documents, even if you need the extra drafting time.

5. How can you support your client during the mediation?

• Be alert to their attention flagging. If they seem confused or if they are overwhelmed by the process. Some clients shut down as a way of dealing with their anxiety or the conflict. Sometimes they are simply tired, cold or hungry
• Suggest that they take a break. They may go for a walk
• Have them remove any distractions
• Make sure that the lawyers are not more engaged or excited about a proposal or settlement option than the clients. Often this can end up wasting time because the client was not on board with the idea in the first place.
• If a client has difficulty making decisions on offers, suggest that they speak with someone whose opinion they value
• Remember that any shuttle mediations usually take longer, so bear that in mind when making and considering offers throughout the day
• Make sure that you have or are ready to, calculate the costs to your client of going to trial. Consider witnesses and if they are experts, not only the costs of their report, but also of attending court for cross examination
• If your client appears reluctant to enter into an agreement, give them the option to take more time to consider it – such as overnight – or to return to mediation on another date

6. How can you deal with support people?

Make sure that the other lawyer and mediator are aware of who will be attending the mediation with your client. Clients can get startled, upset or angry to see former friends or in laws or new partners at a mediation. Explain to your client that their support person can only be present in a separate room with you and your client. They cannot be in the room during any joint sessions. Make sure that the support person signs the Mediation or Confidentiality Agreement before the mediation starts. Sometimes a support person can be invaluable in helping your client see clearly the issues and choices before them. Other times, the support person can be more of a hindrance, keeping your client in the past and in the emotional realm. That is not productive for a client who has to make important decisions and do cost/benefit analysis on the day. If your client seems to rely heavily on the support person’s opinions, make sure that the support person is kept informed of the changing view of facts or positions as they unfold during the mediation. If the support person is not so helpful, consider having them step outside during important discussions or give them tasks to do, such as sorting through documents; doing online searches for property sales or getting coffees and lunch supplies.

7. How do you make sure an agreement is honoured?

After a long day, clients get tired and time runs short to document what has been agreed. If it is not documented, it can lead to people (including lawyers), not remembering details accurately. That can lead to disputes afterwards, and agreements can unravel. Agreements reached, even if in writing, cannot be enforced if one party walks away from it before any orders are made by the court and before a Financial Agreement is executed. Remember that mediation is confidential, so if you are making a costs application to the court after a failed mediation, you cannot refer to offers made during the mediation. Make sure everyone understands the terms of the agreement.

Best practice to maximise the chances of formalising any agreement is (from preferred at the top down to acceptable):

• Draft consent orders and have both clients sign them at the end of the mediation
• Draft Heads of Agreement summarizing the main points of the agreement and have both clients sign them
• Send copies of the signed documents to the clients the same day or the following day
• Have the mediator bring all clients together and go through the points of the agreement
• If the parties do not wish to be in the same room, have the mediator summarise the points of the agreement

Signing the agreement, even if it is an interim one, is a symbolic way of showing commitment by the clients. It can also give them that important sense of finality.

8. What should be done immediately following the mediation?

• Distribute any signed documents
• Draft any settlement documents promptly whilst everyone can recall more accurately about the details of the agreement
• Check with the other lawyer who is to send documents to the court, or write to the superannuation trustee or call the Child Support Agency to make an application for an assessment
• Give the mediator any Certificates of Dispute Resolution they are required to complete for the court
• If no agreement is reached, make a written offer shortly after the mediation to assist with both the resolution of the case, and also to protect your client on costs
• Check orders about whether and when any offers of settlement need to be made if no agreement was struck at the mediation
• If facts remain in dispute, make a list for your client of the evidence they will need to support their position in the future
• Consider whether a further mediation will assist.