Mediation is not an extension of litigation

The process of family law mediation is nearly the opposite of litigation.  In litigation, parties delegate their decision making powers to a Judicial Officer, whereas the central theme in mediation is self-determination.

Consequently, parties come to a mediation of their own free will and the success or otherwise of the mediation is largely dependent on the preparation undertaken by parties and their legal representatives prior to participating in a mediation.

Mediation is about ensuring that parties are free to express their views, that those views are listened to and the parties are treated with respect.   This is not always the experience in litigation.

The mediator is not a judge and it is not the party’s role to convince the mediator of their position.  In fact in preparing for mediation, a different approach should be adopted then if the party was preparing for a trial.  Whilst there will be some overlap in the preparation tasks it is important that the function of mediation is not overlooked in the preparation stage.

Mediation will only be successful if both parties mutually agree on a resolution.  Preparing a position statement based on an aggressive and emotional premise may be counter-productive in convincing the other side.  It is much more productive to adopt a professional approach and point out the factual discrepancies between the party’s respective positions.

Parties need to be prepared to step away from an adversarial position and consider a more co-operative approach, where professionals can meet and identify the differences in the case and potential solutions to overcome those differences.

Risk analysis

Risk analysis becomes important in the process of preparing for mediation.  This involves consideration of a number of matters:-

• The factual discrepancies in the parties positions
• The evidence available in relation to the factual discrepancies
• The further steps required and the associated costs of obtaining evidence to support a position
• The range of potential results if a judicial determination is resorted to
• The strengths and weaknesses of your client’s case
• The strengths and weaknesses of the other parties case
• The limitations of your client and their witnesses should they be cross-examined.
• The limitations of the other party and their witnesses should they be cross-examined.

In the context of conducting this risk analysis there are a number of tools that are effective. An important factor to remember is, a well-educated client is in a much better position to make a self-determination of the outstanding dispute.

Gathering of facts/evidence

You need to have a full understanding of your client’s current position. 

In financial matters, this includes all relevant financial information.  There are different ways of gathering this information, depending on the sophistication of the client.  A financial statement is often a valuable tool.

At Deborah Awyzio Mediations we are able to send a link to your client, which takes them to a website with a financial questionnaire to complete.  Once the questionnaire is completed, a financial statement and balance sheet can be easily generated. 

In parenting matters information about party’s work arrangements, child care arrangements, any flexibility options available, the routine of the children and activities they engage in, will be important.

Written advice to the client

Advice to the client needs to encompass the following and be in writing so that the client is able to consider it and review it fully:

• The law that applies in determining the matter in dispute
• As far as you are aware the position adopted by the other party
• The factual discrepancies between the parties
• The evidence available either from your client or the other party in relation to the issues where there are factual discrepancies
• Further evidence which would be needed to resolve the factual discrepancies and the cost of obtaining such evidence
• The strengths and weaknesses of your client’s case – referring to the evidence available.
• The strengths and weaknesses of the other party’s case – referring to the evidence available.
• The range of potential outcomes.
• Different options available to give effect to the range of potential outcomes.
• The future costs the client can expect at mediation and if the matter does not resolve at mediation, then to proceed through litigation.
• The practical realities for the client in relation to delaying the resolution of the matter.
• The process of mediation and confidentiality.  You are trying to ensure that the client is empowered about the process.
• What happens with any agreement reached at mediation and further steps required.

Costs estimates

Litigation is foreign to the majority of people.  Their only exposure to litigation is often unrealistic, coming from television shows or movies. 

The actual costs of litigation at each stage need to be clearly articulated.

Realistic time estimates are also required.  The timing of resolution can have a huge practical impact on the parties.  For example if interim expenses are being met by the parties pending final resolution of the matter, that cost should be considered when formulating any proposals.

Position Statement

This should be prepared if at all possible one week before mediation.  It then allows the parties to think about the matter prior to mediation.

In preparing the position statement it is also an opportunity to consider what if any further steps are required, for example:

• Valuations
• Disclosure
• Testing of evidence with client

Mediation Style

Broadly speaking there are a few broad models of mediation which vary between interactive and interventionist[1].  Those styles are:

• Facilitative – the mediator acts as a communicator between the parties to identify their interests and guide discussions.  The mediator does not provide any advice about potential outcomes and it is up to the parties to identify potential solutions and then ultimately adopt them.
• Transformative mediation- the focus is on transforming how parties relate to each other and may be referred to as therapeutic mediation.
• Settlement mediation- parties make compromises focusing on settling a dispute.  It involves effectively positional bargaining.
• Evaluative mediation – the parties rely on the mediator to express a view about ranges of outcomes and whether the party’s positions are realistic.
• The process adopted at Deborah Awyzio Mediation for property settlement disputes is predominantly the following:
• Commencement with a facilitative model, encouraging the parties to communicate their interests and desired outcomes.
• Settlement mediation is then commonly employed to have the parties exchange compromised positions in the hope of reaching a resolution.
• If there is an agreement between both parties and there is an impasse with the parties, a more evaluative model may be adopted with either identification by the mediator of alternative options or a view expressed by the mediator as to an evaluation of the dispute and possible range of outcomes.
• The evaluation model of mediation is adopted as a last option and only in the event that both parties are in agreement.

Safe Negotiating Range

When adopting a settlement or evaluative mediation style, there is a range of expected outcomes that fall within what is typically described as a safe negotiating range.  This takes into account the factual disputes between the parties and the variation in judicial discretion which may be applied to the matter if it is not resolved at mediation.

The best preparation you can do with your client is to educate them about the parameters of that safe range and the costs implications of having the dispute unresolved once offers are being exchanged in that safe range.

Recording of agreements reached

With parenting disputes, parties should be aware that any heads of agreement signed by the parties and dated will constitute a parenting plan, which is not enforceable but will be taken into account by the court in the event the court is called on in the future to determine any parenting dispute[2].  In addition, if there are court orders already in place about parenting, then those orders will be read as being subject to any subsequent parenting plan[3].

With property settlement disputes, parties should be aware of the confidentiality of mediations and the limitations on the enforceability of “Heads of Agreement” signed at mediation.

To avoid any doubt, it is possible to include a clause in any agreements signed by the parties at mediation, that the parties consent to the terms of the agreement reached being produced to the court in subsequent court proceedings.  This protects the parties (as much as possible) against one party withdrawing from the agreement after mediation and not taking steps to formalise it, so that it is in an enforceable form.  By including the suggested clause, any doubt is removed about the ability of a party referring to an agreement reached at mediation for the purpose of future costs submissions.

[1] Alexander, N, “The Mediation Meta-Model – the realities of meditation practice”, ADR Bulletin Vol 12, No 6, 09.01.11

[2] Section 65DAB Family Law Act 1975 (Cth)

[3] Section 64D Family Law Act 1975 (Cth)

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