When clients are told they are going to mediation, most do not know what that means. Most clients in fact never experience mediation. What they usually experience is a form of shuttle negotiation. There may be an initial meeting where all parties and their representatives come together for opening statements. The mediator will usually invite the applicant or initiator of the mediation to tell the mediator, in the presence of the other party and their lawyer, what the case is about and what their client’s opening “position” is. Then the respondent gets the chance to do likewise. The parties, whose future it is that is being discussed, do not speak as their lawyers do the speaking for them.
As a Nationally Accredited Mediator and long term Collaborative lawyer, I believe that this most common form of mediation also misses the mark as far as client expectation is concerned so managing that expectation is critical as is ascertaining what the client thinks mediation is and dispelling any misconceptions. At Caroline Counsel Family Lawyers (Melbourne Family Law Lawyers), we take time to explain to our clients precisely what process they will be undertaking and more importantly we work with our clients to better prepare for this significant event in the life of our clients.
Put simply, shuttle negotiations are not interest based. They have very little to do with what the client is really thinking or feeling about their separation, their ex-partner or what they believe they are entitled to from the marriage or relationship. It does not address their greatest fears, it does not unpack those fears and reframe them into something realistic or do-able with the other party. Often and perhaps because none of these inner most concerns are addressed, many clients end up believing that they will do better in front of a judge. Of course, that presumption is rarely addressed as the client may not admit to their lawyer that this is what they are thinking. They will simply shut down in a mediation and refuse to entertain solutions – even reasonable ones. Again, most clients are unable to articulate this into words for their lawyers. At Caroline Counsel Family Lawyers, we have the skills to enable you to explore your concerns and preferred outcomes in a supported environment in a skilful and empathetic way. You will have the time and we will have the patience whilst you work through various options and also work through what your former partner is most likely to be thinking, feeling and concerned about.
When we prepare our clients for mediation, we need to acknowledge that mediations are conducted under the shadow of the courts and the thinking of the professionals involved is governed by the Family Law Act. In short, the threat of being able to revert back to the mainstream legal process (court) is ever present. The focus of shuttle negotiation tends to be the focus of the legal construct. When the going gets tough, the lawyers tend to rely on the law and what a Court might do to dissuade a client from terminating the process. The mediators may paint a very clear picture of what they think a court may do in a given fact situation and hope this is persuasive to one or both parties. Some mediators prefer to see if the couple with their respective legal advisers can reach agreement first before delivering their view. Some will not share a view or opinion about possible outcomes. They leave that to the clients’ lawyers.
In any event, few mediators (noting there are some who do conduct these events as interest-based mediations) conduct preliminary meetings with clients and their lawyers to ascertain the participants’ concerns, interests and what is and what is not negotiable, at least in the mind of the parties. Instead most mediators also refer to the alterative to mediation – litigation and therefore, intentionally or unintentionally, dismiss heart felt and nonnegotiable interests of the participants (no matter how unrealistic the client is being in holding onto those interests).
Whilst the mediator may be able to dispel the myth of “I think I will do better in front of judge” – the other unspoken concerns and motivations of the client are often not explored and therefore not addressed in this form of mediation.
Unless your lawyer has spent time listening to your and helping you unpack your concerns, fears, beliefs and misinformation, you may not feel as supported as you could feel going into a mediation.
At Caroline Counsel Family Lawyers we are committed to working with you to best understand what matters most to you. We are also not afraid to give you the information and advice that you need to have so you can make informed decisions going into a mediation.