Mediation and negotiated agreements are used a great deal of time with Family Court matters. It's actually rare that people have a full trial in Family Court. Some or all issues are usually resolved out of court through agreements.

In Australia, Family Law Mediation is called Family Dispute Resolution and is facilitated by an Accredited Family Dispute Resolution Practitioner.

If you can reach agreements out of court an agreement about Children is called a Parenting Agreement or a Parenting Plan (if you sign and date it) An agreement about property is called a Property Agreement or Property Settlement Agreement.

You are generally required to attempt Family Dispute Resolution for Parenting Issues before you are allowed to apply for court orders unless you are eligible for a family violence exception or your issues are urgent (in the eyes of the court). If you try FDR but it is unsuccessful or the FDR Practitioner decided that it is not appropriate they will issue you with a Section 60i Certificate which shows the court that an attempt to resolve the dispute through mediation has been made by you, by your co-parent or by both of you.

A certificate is not required if you only want to apply to court for property orders but it is encouraged that you try to resolve your issues through negotiation.

Preparing for mediation

Before you go into a mediation or negotiation session, take a moment to think about the following things, and I encourage you to write them down.

What’s your encouraging statement to help you stay calm?
Remind yourself to use flexible thinking. Think of a proposal or possibly two proposals, on every likely issue, before you go into the mediation.
Think about how to have moderate behaviours during the mediation.

Should You Send a Proposal Beforehand?

If you have a co-parent who's very reactive in the moment and may have some of those "always dramatic" tendencies, or "always suspicious" tendencies, or maybe just very sensitive about being self-centred, you may want to send your first proposal to the other person before the negotiation or mediation session, so they get a chance to react and calm down before you meet with them face-to-face.

This can be especially helpful if they're working with a lawyer or if somebody else is helping them – maybe a family member or friend – so they can discuss it and think about it before the mediation.

A high conflict co-parent will often overreact during the mediation session or negotiation session. Then they spend a whole hour or two overreacting, and you don't get any decisions or agreements.

If they could get their overreacting out of the way beforehand, then they might be able to focus on problem-solving. So think about sending your proposals to them a couple of days before mediation, maybe in an e-mail.

Checklist for Yourself

Here are a few things to think of to make a checklist for yourself during the mediation. The mediator will usually remind you of these options at the start of the session but it helps you to be prepared.

Don't interrupt while the other person is talking. This is because you want to really hear what they're saying and finish getting their ideas out. When you interrupt, it makes it hard for them to finish that process. They are calmer when they can get it all out, and are more open to what you're going to say. Keep in mind, no one’s perfect. Also make some notes to remind yourself of ideas that pop into your head while the other person is talking.
Treat everyone with respect. Avoid insulting comments, raising your voice or pointing fingers. Those often trigger defensive reacting in the other person, and you want to influence them in a positive way. You want everyone to stay calm and rational to focus on solving the problems that you came to discuss.

Speaking respectfully goes a long way towards reaching agreements that will work or last over time. Remember, you want them to stick with the agreements, so you want them to feel they have thought about them, and that their thoughts and comments were respected.

Use “I statements”. You can say “I feel” or “I prefer” or “I wish” or “I have another idea.” This is much better than blaming phrases that usually start with, “You always…” or “You never…” Avoid those kinds of statements.

Remember, all you have to do is reach an agreement: you don’t have to change the other person’s way of thinking. If they have one of these high-conflict personalities, it's unlikely that they're going to change their way of thinking in a big way. But if you can get them to agree to specific decisions, it may help you both move on with your lives.

Ask to take a break, if necessary. Avoid just getting up and walking out. Ask for a break, so that everyone can stop for a few minutes at the same time. Mediation and negotiation sessions are more flexible than a court hearing or arbitration and parties often ask to take breaks.

You can say to the mediator, “I'd like to take a break now for fifteen minutes. Is that okay with you?” The mediator will almost always say, “Oh, ok. Yeah, let's take a break now,” because they realize that helps many people to calm down and gather their thoughts.

Ask to talk separately. If you're in mediation, there is usually one mediator and there are the two of you. If you feel that you want to talk separately to the mediator, then you can bring that up and suggest and say, “It might help if we could have a chance to meet separately with you.” And you understand the other person gets a turn also.
Find out how confidential the information is when you start meeting with the mediator. Some mediators say everything is confidential and other mediators say there are some things they can't keep confidential, for example, if you're hiding money in a separate bank account or you're going to fly out to another state with the child right after the mediation session and you plan to never see the other parent again. Those things can't be kept secret. It’s often common for the mediator to say: “I can keep a lot of things confidential, but not everything.”

Make a checklist of these ideas a few days ahead of time to help you as you go and prepare for the mediation.

Mediation Example

In one mediation, a couple had been divorced for several years. The husband had remarried and the former wife had not remarried.

All three agreed to come to talk about child support and making some changes to contributions towards school fees, based on the former wife's income changing.

A mediator will ask if the two parents, the two parties of the first marriage, agreed to have the new spouse come.

It can be helpful because the new partner is going to be part of implementing the parenting plan, and either supportive or not supportive about the family finances that go to supporting the child of the previous relationship.

This arrangement can cause difficulties as during mediation there are likely to be times when the former wife feels a little bit uncomfortable because there were two of them and one of her.

In this case she was able to ask for breaks and she was able remind herself to “check herself” and stay calm. By the end of the session, there was actually a good agreement. All three of them were quite relieved to have reached an agreement on something they thought was going to be difficult.

Afterwards, in the feedback from the former wife, she was very appreciative of the ideas like these tips for heading into mediation and negotiation. It helped her stay calm, and she did an excellent job.

Prepare for Upsetting Statements

Checking yourself ahead of time includes thinking of upsetting things your co-parent might say in a negotiation session or in a mediation session.

If, for example, the other parent says, “You never did such-and-such activity with the child,” you can plan how you would respond to that. Maybe even practice with a friend beforehand.