Mediation

Our flexible mediation service:

• Creates a positive climate for joint decision making.
• Improves communication (essential for future cooperation as parents).
• Facilitating negotiation and agreements.
• Can deal with all parenting, property and financial issues.
• Avoids delay, stress and costs of court proceedings.
• Mediators are neutral, independent and do not take sides.
• Satisfies legislative requirements including Pre-Action Procedures, Section 60I Certificates, court ordered mediation.
• Can be arranged quickly and is confidential and discreet. No lengthy waiting period.
• If appropriate and agreed, lawyers and other experts (eg. accountants, counsellors) can attend.

Step 1 – Separate pre-meetings for each party to:

• Allows each party to learn more about mediation, tell their story and establish trust and rapport with a mediator.
• Check the dispute is suitable for mediation and customise the process to meet the needs of the parties.
• Preparation for joint mediation including effective negotiation and communication skills.
• Identification of documents and information which will help at joint mediation meeting.
• More info about pre meetings.

Individual pre-meetings generally take in excess of one hour and cost $330 incl GST for each party. If either party does not wish to proceed to a joint meeting (or mediation is not suitable) there is no further charge. This avoids the greater cost of arranging a joint mediation where there might be negligible chances of success or the dispute is unsuitable.

Step 2 – Confirmation of arrangements including provision to mediator of agreed documents for reading:

This allows the mediator to customise the mediation process to the needs of the parties. There is no additional charge for this step.

Step 3 – Joint meetings which involve:

• Identification of issues and concerns of each party.
• Full discussion to allow each party and the mediator to understand each party’s point of view.
• Identification of different options which might best meet the concerns and views of each party.
• Negotiation of a mutually acceptable agreement (and how the agreement is to be documented).

The length of the joint meeting will vary depending on the issues and who is attending. Typically, joint meetings are:

• Full day (seven hours). This is common when issues are complex or lawyers are attending and parties wish to resolve all issues in one session. The total cost including reading, 2 pre meetings and rooms (2) in Sydney CBD is $4,800 incl GST.
• Half day (four hours) including reading, 2 pre meetings and rooms (2) in Sydney CBD is $2,400 incl GST.
• Parenting issues only (three hours), where no lawyer is attending, including reading, 2 pre meetings and rooms (2) in Sydney CBD is $2,000 incl GST.

These costs are effective as at 01/01/23 and are payable prior to the relevant meeting.

For information about Matthew Shepherd’s expertise and qualifications as a mediator see About Us.

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.

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 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.

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.

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 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.

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.

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.

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.

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.

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?

Separated spouses almost always have poor communications. Poor communications probably contributed to the relationship breakdown. Paradoxically, separated spouses often continue to use their old faulty communication techniques (which led to the separation) to try to resolve important issues arising from the separation. By doing so, they commonly deepen disputes and acrimony. The human brain (especially in times of stress) causes us to respond to conflict by “fight or flight” – neither are good ways to resolve the issues that arise from separation.

Spouses generally go through the separation process at different speeds, and this can complicate communications. One spouse has commonly been contemplating separation (and experiencing a cycle of emotions including sadness, depression, anger, hope) for some time without the other spouse realising. They tell the second spouse who then experiences the same cycle of emotions whilst the first spouse has moved on to start planning for the future and dealing with concrete issues including children, property, finances and divorce. The second spouse who is still dealing with the emotional consequences of separation may become confused and upset by the first spouse being focused on practical issues and seemingly not caring about the relationship breakdown.

In the emotional pain of separation, spouses will often try to simplify issues. This can lead to common communication problems including:

• Overgeneralizations – “all he cares about is money”.
• Absolute statements – “she always spends all the money”.
• Incomplete comments – “I’m confused”. This does not help the other person understand why or be able to respond constructively. You need to explain what you are confused about and why.
• Linking cause and effect – “you make me feel sad” vs “I am sad.” The mistake is to assume because someone’s actions or words make you feel a certain way, that they intended to make you feel that way.
• Mind reading – “please do not be mad at me.” The other person may not be feeling mad about the speaker – their mood may be caused by something else. The flipside is we incorrectly presume the other person knows what we are thinking. Psychological research shows that people are often mistaken in their assumptions as to what other people think or know. This is especially so when emotions are heightened.
• Thinking the other person has the same knowledge and experiences as you do and if they do not share your views it is because they are mad or bad. Everyone has different knowledge, life experiences and needs which cause them to have different opinions. It is common for two rational, well-meaning people to have different views on the same issues.
• Focusing on recent or negative events rather than looking at the complete history of the relationship including the positive qualities of the relationship and the other person. Separated spouses can form overly critical views of the other person by only recalling recent negative interactions.

In almost all separations, both spouses need to keep communicating. This is commonly because they have children. Even if they do not have children, there are normally legal and financial issues that need to be resolved together.

Separated spouses generally remain interdependent on each other as they each need different things from each other. This can cause frustration for both as neither can move on entirely independently or autonomously of each other. This problem is not the fault of either person but rather the poor relationship (which has let the spouses down) and the complexity of the situation.

It is better to focus on the joint problems and shared situation rather than the personality of the other person.

• Wait for the right time

Do not try to communicate if you (or the other person) is not capable at the time. There is little point having important conversations if either person is in “fight or flight” mode.

• Pick the right time, place and method

Be wary about phone, text or email communication. See our page on Effective Electronic Communications. They are not good for exchanging views on complex or important issues. Let the other person know in advance you want to talk about some important issues. Get their agreement to talk rather than forcing it on them. Ensure neither of you will be disturbed by children, family, colleagues or calls. A good mediator can ensure a safe, focused environment to discuss important issues.

• Think carefully beforehand

What are the issues you want to discuss and what can you realistically expect the other person to do about them? How do you feel about the issues? It can be easy to underestimate the complexity of your emotions (and the other persons.) People often think they are feeling only one emotion (the strongest one) when they actually have a number of complex feelings. For example, anger (which can be manifested as threats) is often a secondary emotion covering feelings of hurt, powerlessness and fear (often of being abandoned or ignored). It is more productive to discuss the underlying causes of the anger than merely express the anger.

• Listen to the other person

Listening carefully to the other person is the cheapest thing you can give them. Listening does not mean you agree. It will make them more likely to listen to you. Show them you have listened by repeating what they have said or asking questions to check you have understood them.

Listening is more than verbal – 85% of communication is non-verbal. Be aware of facial expressions, tone of voice and body language of both yourself and the other person. Be careful of text and email where non-verbal communications are lost.

•  Slow down

Take time to carefully explain your views to the other person. They will be more likely to listen to you, if you have already listened carefully to them. Invite them to ask you questions if they do not understand you. Take care in dealing with your strong emotions. Explain how you feel and why – but avoid venting (see the discussion of “I statements” below). Acting emotionally (as opposed to describing your feelings) will reduce you ability to focus and will cause the other person to stop listening to you.

• Avoid criticising or belittling the other person

Instead explain how their actions make you feel. Use “I statements.” These involve describing how your emotions arise out of their behaviour. The statement is therefore about you and the problem rather than an attack on the other person. Here are some examples.

Do not say

• “You are so inconsiderate when you always return the children late. You just do it to annoy me.”

Instead say

• “I feel stressed …when you are late delivering the children… because I can’t then get them to school on time.”

Do not say

• “You are a bastard”

Instead say

• “I feel sad/lonely/upset when you fail to let me have the children because I miss them.”

Do not say

• “you are a greedy so-and-so who wants to suck me dry.’

Instead say

• “I feel sad you fail to recognize my father’s generosity during the marriage when you say you want 50/50.”

Do not say

• “You have ruined our marriage by having an affair. Why did you want to hurt me so much?” This will cause the other person to deny any intention to hurt (and be able to ignore your feelings).

Instead say

• “I feel devastated by you having an affair”.

What if the other person is unable or unwilling to try these communication techniques?

There is no point giving up and responding with similarly bad communications. Consider terminating the discussion temporarily. Alternatively, ask them what good is served by their attacks. Or use a third party such as a mediator or family dispute resolution practitioner to help.

There are a number of different ways separated spouses can choose to discuss and negotiate  these issues including:

1. Face to face (hereafter referred to as FtF).  This can be at home or on neutral territory such as a café.  FtF discussions can be planned and agreed, or be spontaneous such as when exchanging children.  They can occur in the presence of a third party such as friend or family member, doctor, or more formally with a mediator.
2. Through third parties such a family, friends, lawyers or children (which should be avoided).
3. Telephone.
4. Letters and notes.  These might be exchanged in different ways including mail, direct exchange, children’s bags etc.
5. Electronically via email or text (hereafter referred to as electronic communications or EC).  This is the focus of this page.

Email and texts have distinctive characteristics including:

1. They are sent and received in isolation from the other person.  This isolation reduces the ability for each person to check with the other that they have heard and been understood correctly.  There is therefore greater opportunity to misunderstand and be misunderstood.  Research also shows that physical isolation can reduce inhibitions on electronic communicators to be courteous and respectful.  On the other hand, in difficult relationships, physical isolation might avoid spouses’ acrimony for the other being triggered by their physical presence.
2. You cannot control or know when or where the other person receives the message.  You cannot predict what mood they might be in.  The circumstances and mood in which your spouse receives the message (at work, whilst driving, with children, out partying) will effect how they deal with the message.
3. It is unpredictable when your ex spouse might be able or choose to reply to your message.  They might have different technology to you which affects their ability to reply.  They might choose to take time to carefully consider and draft a thoughtful response.  Alternatively, they might send back a quick response in a tone which is more indicative of the circumstances in which they receive your message than their true views about your message.
4. Text and email is text based.  They cannot communicate tone of voice, facial gestures or body language.  Some people cannot write as well as they can speak.  Electronic communications can only pass on part of the information that a face to face or phone conversation can.
5. Electronic communications can be edited, stored, reviewed, printed and forwarded to other people.  They are more permanent than verbal communications.  Many people treat emails and especially texts as being similar to oral communications and write and send them without great thought or checking.

Before sending (or replying to) a text or email consider:

1. Do you need to communicate or respond?
   You do not have to respond to their communications.
2. What is the best medium?
   It is your choice as to what medium (FtF, phone, via third party, arranging mediation, electronically) to use to communicate.  You do not have to reply to their communication using the same medium.  You do not have to reply in the same emotional tone.
3. What is your purpose?     If it is to vent, criticize or complain – do not do it.  Text and emails are bad ways to raise difficult issues or communicate feelings about the relationship and separation.  You have very limited ability to change the point of view and behavior of your ex spouse (and no ability to change their personality).  You certainly will not do it via ECs.    Texts and emails are however great ways to confirm something previously discussed or provide straightforward factual information.
4. Do not presume you correctly understand the other person’s thoughts and motivations.
   (a)     It is hard to understand the other person’s intended meaning without the tone of voice, facial gestures and body language when we are speaking directly with them.  In particular, do not presume that if the other person’s message made you feel bad that that was the intention of the other person.  Without attacking or criticizing, be curious and ask them.
   (b)     In drafting a message, carefully consider whether you know how they will react.  If in doubt, do not send it.
   (c)     The greater the conflict, the less accurately you will each be in assessing the other’s mindset and intention.
5. Be careful with (and probably avoid humor) especially irony and sarcasm).  Your joke might be interpreted as a criticism.
6. Save ECs before sending them.  Leave them for a few hours (or ideally overnight) and then review them before sending.
7. If an immediate message is necessary (for example, arrangements need to be made to collect a child within the hour), restrict the message to the practical essentials (eg. time and place).  Omit references to how your ex got it wrong and “It better not happen again.”  How to avoid the difficulty occurring again is best left until after the immediate problem is resolved.
8. Do not write texts or emails when angry or intoxicated.
9. Emails and texts are not informal verbal conversations.  Do not write quick throw-away or “off the cuff” messages.  Remember that your messages can be saved, reviewed, printed and forwarded.  Do not send a text which you would be embarrassed for any other person to read.  Treat your ECs with your ex spouse as least as seriously as emails you send for work or business.
10. Use ECs to make positive comments – do not just use them for problems.  Ideally, the positive exchanges in your ECs should significantly outweigh the negative.  If your ECs are dominated by acrimony, consider choosing new ways to communicate and negotiate.  Use them to thank your ex-spouse when appropriate or to pass on information such as school dates or photos you have taken of the children.  But be careful and consider how they might be interpreted by your ex.  A photo of your child’s last soccer game is better than one of him looking happy with your new partner at MovieWorld.
11. Discuss with your ex spouse an agreed protocol of ECs.  This can include frequency, length, preferred phone numbers and email addresses, realistic reply times, agreed subjects for ECs.
12. If you each exchange more than three emails or texts on the same issue, you probably need to switch to a different medium of communication.  This rule of thumb could be part of your agreed protocol.
13. Consider giving pr forwarding a copy of this page to your ex-spouse.

The following are common tips for good communication given to separated spouses engaging in mediation and counselling.  They are also useful for electronic communication:

• Do not criticize or belittle the other person.  Instead explain how their actions make you feel.  Using “I statements”.  These involve describing how your emotions arise out of their behaviour.  The statement is therefore about you and the problem, rather than an attack on the other person.
• Avoid absolute statements such as “never” or “always”.  These invite the other person to find an exception and thus avoid the substance of your concern.
• Avoid offensive or inflammatory language.
• Express your proposals as a request or suggestion (not a demand) which the other person can choose to accept or reject.  A proposal expressed as a demand is likely to be rejected because it is a demand (irrespective of its merits).  If your ex-spouse makes a demand in EC to you, do not dismiss it immediately.  Rather, say something like “Well, that’s one option for us to consider.  Before making a decision, let’s see what other options there might be.”

If you would like a copy of Matthew Shepherd’s research paper on this topic, please email your request to matthew@shepherdsfamilylaw.com.au.

Separation is very difficult for parents. It is even harder for children.

Psychologists say that the impact of separation for spouses is similar to the death of a loved one. Spouses will mourn their lost relationship and planned future. They will experience a range of emotions – shock, denial, fear, depression, anger, sadness and finally acceptance.

It is common for parents to separate at different speeds. In 75% of family breakdown, one party does not want to separate. The initiating spouse may spend up to three years thinking about separating before taking steps to do so. It can take over two years following the physical separation for the other spouse to accept the separation, and for both to resolve issues about money and property. This is a long time for parents. It seems an even longer time to children given their shorter lives.

Children are just as hurt and vulnerable at separation as their parents. They need extra love and support at a time when their parents are least able to provide it. A huge number of changes occur for children about which they have little understanding and no control.

Research reports that most children are not adequately informed by parents about the separation. In an Australian study, 25% of children reported no one talked to them about the separation, and only 5% said they were given a full explanation. Children can be confused when given different explanations by each parent.

Most children can cope with the separation if handled sensitively. The greater problem for children is high conflict between their parents. High conflict is a bigger problem for children than the amount of time they spend with each parent (which is more typically a concern of parents). Moving between two households in dispute can be extremely difficult. Children struggle to adapt their behaviour in each household in order to cope and please each parent. It is common for children to say different things to each parent (what the child thinks the parent wants to hear) in order to please them. They can become preoccupied with surviving in an emotionally volatile environment – rather than being children and focusing their time on studies, sports, friendships etc. Children can interpret parental unhappiness over children’s living arrangements as being their own fault. Internally, children may process the dispute as “Mum and dad are unhappy and angry about the time I spend with them, they are unhappy and angry about me, I must therefore be to blame for them being angry and unhappy, I must be bad”.

Some problematic behaviour can include:

• Children trying to be perfect, and not wanting to cause their parents more distress. In some cases, roles are reversed and the child looks after the needs of the parent.
• Acting up to get attention from their parents who are distracted by their own problems.
• When each parent has entrenched antagonistic views of the other, a child may become aligned with one parent to reduce their own confusion and frustration and avoid movements between warring homes.

Most children experience confusion and dissatisfaction with post separation living arrangements. After all, they are the ones suffering the inconvenience of having to regularly move between houses and spend less time with each parent than before separation. A lack of complaint from children about these things may be a problem in itself as it suggests they are reluctant to express their own needs and are overly concerned about their parents.

Common reactions of children to parental conflict can vary according to age and gender:

• The younger the child, the greater the short term impact. Infants and toddlers cannot comprehend what has happened and can experience problems with bonding and attachment with each separated parent.
• 5 year olds do not readily conceptualise parents as having any other roles than as their parent – they think their parent’s emotions and behaviour is about them and they self-blame.
• 5 to 8 year olds can try to distract parents from fighting by misbehaving themselves.
• 8 to 12 years olds might think about or actually try to intervene.
• Older adolescents are more likely to avoid conflict by absenting themselves and spending more time away from home. This can lead to risk taking behaviour.
• Boys are more likely to tend to experience a higher level of threat from parental disputes whilst girls self-blame.

• Avoid conflict

Work out issues with your ex about money and parenting arrangements. Do not be fixated about how many nights the children are with each of you. Parents count nights – not children. What kids are most commonly reported as wanting is no conflict.

• Tell the children the same story as the other parent

This means having to discuss, negotiate, compromise and agree on arrangements with the other parent. This takes careful communication – see our page on Effective Communication. Mediation can help you reach wise agreements.

• Develop a strong parental alliance

Children do not just have a relationship with each individual parent. They also have a relationship with the relationship between their parents. The better and more cooperative the relationship between the parents, the happier the child will be and the better the relationship the child will have with each parent.

• Get happy (both of you)!

Happy relaxed parents make for happy relaxed children. It is in the best interests of you and your children that the other parent is happy.

• Do not denigrate the other parent

Children identify with both parents. They interpret parents criticising the other as criticism of themselves. Denigration can be subtler than straight out abuse. It can be comments like “S/he left us …s/he does not love us”. Make a clear distinction between your feelings for the other parent and how the children feel for them. Your children’s needs and feelings for the other parent will be quite different to yours.

• Do not use children as go-betweens

Do not use your children as carriers of messages or as sources of information about the other parent. You need to work out new ways of directly communicating with the other parent. You need to find ways to deal with each other as parents – not partners.

• New partners – take care

Some parents agree not to introduce their children to new partners until a certain period of time has passed. For example, six months to ensure that it is likely to be a long term relationship. Many parents also agree not to introduce their children to new partners without advising the other parent beforehand. This avoids potential conflict and emotions arising from the other parent finding out about the new relationship through the children, which places the children in an embarrassing situation.

• Be prepared for change

The needs of children (and each of their parents) will inevitably change over time. What is best for your children now will be different in 12 months time, and different again in five years time. Parents need to review parenting agreements upon the occurrence of milestones such as children starting school, children starting high school, parents entering into new relationships or wishing to move etc.

• What kind of parenting style is best for your children?

There are three common patterns of post separation parenting:

Cooperative parenting:

Parents communicate regularly and collaborate on decision making, health, activities etc. They treat each other with respect and will vary routines and responsibilities according to the needs of the children. 25% of separated parents achieve this.

Parallel parenting:

This style features little communication between parents and is low in conflict. Each parent does as they wish during their time with the children. Parents treat each other as business parents – they do not need to be friends or to like each other. Children can do well as they are protected from conflict. Parallel parenting fails to coordinate routines and can fall down on monitoring homework and health issues. 50% of separated families feature parallel parenting.

Conflictual parenting:

This features continued negative emotional entanglement and parents. Parents maintain hostility and conflict. They communicate frequently but poorly. Conflictual parenting is damaging to children.