How to know if mediation is right for you
There are lots of difficult decisions that result from the breakdown of a marriage or de-facto relationship. These decisions are made more difficult when issues like infidelity or some other kind of betrayal prevent parties from maturely seeking a quick resolution to the legal aspect of their split.
One of the questions you need to ask during this time is whether or not to pursue family law mediation with your ex. This also means you are interested in settling your dispute outside of court and avoiding the expense of litigation.
Family law mediation is well-known as an effective dispute resolution mechanism – but is it right for your specific circumstances? The following will examine some questions you should ask yourself to see whether or not family law mediation is the right path forward.
1. Are you able to clearly recognise what’s in the best interests of yourself, your ex and your children?
Family law mediation works best when the parties involved demonstrate they have an instinctual understanding of what is in the best interest of everyone in the former family unit. This includes recognising and protecting the best interests of any children you and your ex shared.
In fact, ‘the best interests of the child’ is the framework by which your family mediator will facilitate negotiations around custody disputes. This is because children are often the innocent victims caught in the crossfire of a divorce, and parents who focus too much on battling with their ex can end up neglecting or alienating their kids. Sometimes parents might even try to use children as pawns in a game to ‘beat’ their ex or try to deny them access out of spite and not because they are a bad parent. Obviously, this kind of behaviour is frowned upon by the Australian family law system and would not get you very far if attempted during a divorce mediation.
While kids are the primary focus (because they arguably have the most to lose when parents split), your best interests are important as well. It’s essential you don’t cave-in early and accept a bad deal because of stress. You need to defer to the experience and expertise of your personal family lawyer whenever you are unsure of what implications a decision might have for you.
2. Are you able to make assertive decisions about what your future will look like?
Both parties need to be able to assertively make decisions about their own future for mediation to have the best outcome. While both you and your ex can (and should) have your personal family lawyer advising you during the mediation process, the ultimate decision on what agreement to settle on needs to align with both perspectives for mutual benefit.
You need to be able to take full responsibility for the decisions you make and what you choose to pen your name to in the final settlement. The point of mediation is so that both parties can openly and honestly reach a mutually agreeable compromise that won’t be disputed later on. If you don’t have clarity of mind about what you want for your future (and the future of any children present) then there’s no way to ensure you won’t try to renege on the agreement and open up another legal battle down-the-line.
Similarly, it’s essential you know that you ex is being sincere about their intent to mediate and that they too have clarity of mind about what they want. You don’t want to invite future lawsuits and angst by rushing through a mediation process with the wrong intentions.
Remember; future disputes with your ex are only going to delay your future happiness and the future happiness of your kids. If you are going to attempt mediation, go into it with a mindset that has no doubt about what it wants the future to look like.
3. Can you comprehend all of the finances being discussed?
Of course, you need to know how to interpret financial asset information in order to succeed during a mediation that covers a dispute over property settlement. If you don’t have a good grasp of the numbers (or access to someone who does) then it will be easy for you to accidentally agree to a settlement you thought was good but actually is unoptimized or seems to favour your ex who was paying more attention.
It’s therefore essential that you make sure you are familiar with the status of your financial assets and know how to leverage their value during negotiations. When both you and your ex can confidently speak about financial numbers without any silly disagreements because of poor preparation, then you will notice the mediation process move a lot smoother.
4. Are you comfortable speaking up for yourself in the presence of the mediator?
Family law mediation sessions aren’t guaranteed to be simple or stress-free, its common for conflicts to resurface during negotiations and they have the potential to derail the entire process if you don’t have a good mediator supervising you and your ex. With that said, the mediator is also vigilant against either you or your ex exerting emotional leverage over the other and seeks to ensure you are both on an even-playing-field.
It is important that you are able to speak without a filter and express your honest thoughts about what is being discussed. If you can’t open you mouth and let your opinion flow out unfiltered, then you are going to be hindered during the negotiation and will be more likely to accept settlements that deep down you’re uncomfortable with.
The primary benefit of you and your ex actually speaking through a mediation session rather than via your lawyers is that you both feel more in control and empowered when the process ends. The best approach is to always seek forgiveness from one another and acknowledge that you both deserve to be happy despite the marriage not working out.