Getting the best results from mediation

Family law mediation with your ex-spouse is probably the most important negotiation either of you will ever have. The following tips will help you reach the best possible agreement.

  • Choose the right mediator

There are different types of mediators and different systems of mediator accreditation. You should consider the expertise and qualifications of mediators, their costs, their ability to arrange mediation quickly, their mediation style, privacy and confidentiality. Good mediators have private pre-meetings with each party to explain the process, check mediation is suitable for the parties and discuss how to achieve the best outcomes.

  • Prepare carefully

Consider:
What information do you need to make good decisions?
What are your needs, goals and aims?
Why are they important to you, and which are most important?
What are all the different options which can meet your needs and goals?
What would the other person consider to be their needs and goals?
How can you meet their needs and goals whilst also satisfying your own?
What are simple ways to explain your goals and possible options to the other person without alienating them?

  • Consider what you will do if no agreement is reached

Consider what your alternative options are if no agreement is reached. What needs and goals can you meet without the other person’s agreement? Without answering this question first, you might reject options during mediation but find you can do no better by acting unilaterally on your own. Alternatively, you may find you accept an option at mediation that is worse for you than the best alternative you can achieve on your own. When considering your alternatives, don’t forget the disadvantages. If going to court is an option, the disadvantages include delays, expense, stress, uncertainty as to outcome and damage to your relationship with the other person.

  • During mediation listen carefully to the other person and ask them lots of questions

The easiest and cheapest thing you can give the other person is to carefully listen to them. Careful listening does not mean you agree with them. You may learn about things they need which you might be able give to them without giving up your needs. Listening to the other person will encourage them to listen to you and your concerns.

Do not presume you know what the other person is thinking. Psychological research shows people are commonly wrong in their predictions of what other people think or want – especially in times of stress and heightened emotions. Use mediation as a controlled environment to accurately learn what you each think and want.

  • Gather relevant information and identify all possible options before making offers

People commonly decide on a position or course of action before they have all information or considered all options – and are then reluctant to budge. If both parties do this, the only way to agree is to meet in the middle (which may result in a bad outcome for both parties) or not reaching any agreement at all. Mediation aims to explore each person’s needs and concerns, identify all possible options and only then assess which option has the most advantages (and least disadvantages) for each person.

  • Do not dismiss the other person’s offer even if you think it is unfair

Do not reject an offer from the other person outright. Instead, refer to it as one option but suggest they might wish to consider some other options.Think carefully about whether your best response is to immediately make a counter offer. It may be better to ask some questions about their offer – why do they think it reasonable, what information have they relied on etc. Asking questions does not mean that you are agreeing. Asking questions about their proposals may cause them to make concessions before you even need to make a counter offer. At the very least, you will learn more about what they want and what they might be prepared to concede. Explain why you find their proposal unsatisfactory. Explain how their proposal could be modified to make it more acceptable to you. They might be more likely to agree to modifications to their proposal rather than accepting modifications to your proposal.

  • Carefully consider how to explain your own offers and proposals

Explain your reasoning before stating the offer. If you make the offer first and then explain it, the other person is likely to stop listening once they hear the offer and start thinking about their response (rather than listening to your explanation). You need to give them reasons to consider your offer. These might be positive reasons (why your options meet their needs) or negative (they will do no better via other means such as doing nothing or going to court). It may be better to use the positive reasons first and keep the negative ones (which will be heard by the other person as implied threats) for later if necessary.

If they do not accept your proposal, ask what problems they see with it and how it might be modified to make it acceptable to them. Consider making conditional concessions. This involves suggesting you might concede an issue (which is of significance to them but of less importance to you) if they concede another issue (which is of significance to you but of less importance to them). Negotiation is fundamentally about discovering what the other person needs or wants that you can give them (without significantly compromising your needs) and seeking what you really want in return. There is almost always more than one way (and often three, four or more ways) to satisfy the different needs of separated spouses. The key is to find the option that meets as many of the needs of each person.

Avoid presenting your options as a “final” or “take it or leave it” offer. This will be heard as a threat and may cause the other person to reject the offer. The influence of such threats is only temporary and is lost immediately a further offer is made by you or a time deadline has passed.

  • Explain how you feel but avoid acting emotionally

Emotions are part of being human and feature in all disputes. It can be valuable to you and the other person to both explain how you feel and the reasons why. It is not useful to merely vent. Acting emotionally (rather than explaining how you feel) will effect your ability to remain focused. The other person has probably experienced you being emotional before and will stop listening to you. When explaining how you feel, it is useful to use “I-statements” which are explained on our other page Effective Communication/Mediation.

  • Do not criticise or attack the other person

Mediation is about persuading the other person. Criticising generally does not persuade. Avoid thinking their failure to agree with your views is because they are mad or bad. It is common for two rational people to form different points of view about the same issue. You each have different information, different life experiences, different interests etc. It is better to question their logic rather than attack their personality. You may be able to give them new information that changes their view. You may find the reasons you both want something are compatible and there might be other options that meet the needs of both of you.

  • Consider how the proposed agreement can be implemented

Reaching an agreement is only one step in solving the problem – the agreement also has to be implemented. It is important therefore that the agreement is realistic, and that both parties (even if they both compromised) accept the agreement as being reasonable. A party who feels pressured into the agreement may become resistant to implementing it promptly.

  • Consider the long term

Imagine yourself in twelve months with the dispute resolved. How important will some of the current issues seem then? Conversely, how will you feel if the dispute is still alive and perhaps you are involved in court proceedings?

Compulsory mediation and family dispute resolution is increasingly required by legislation and courts.

We provide mediation and dispute resolution services that satisfy these legal requirements and can help you reach better agreements.

 

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