Regardless of whether your dispute is a property dispute or parenting dispute, or both, it is important that you take steps to prepare for your mediation. The more prepared you are, the more effective your mediation can be. Set out in this article are some steps you can take to ensure that you are prepared for your mediation, whether you are attending with a lawyer or not.
If your matter is already in court, take the opportunity to read through any material that has been filed. While you have lived your separation with the other party, sometimes it is helpful to refresh what has been said by them and what arguments they make.
Make a note of those things that are important to you. Whilst mediation is ultimately in negotiation with give and take, it is important that you get clear in your own mind, your ultimate goals and things you might call deal breakers. Depending upon whether your matter is a property matter or a parenting matter, this process of considering what is important might look like this.
If your matter is a property matter, you might have decided that you would like to keep one of the properties and you have arranged refinance and are ready to go. There might be certain items of personal property and chattels that you want to retain. If so, write a list and bring this along to the mediation. Be specific. Do not assume that you will be able to simply divide these items. In the heat of the mediation, we often find that it is the little things that cause the most significant dispute.
For a parenting matter, you may have some special events or occasions that you want to include in the agreement. It might be that the children’s spent Christmas with your partner last year and therefore in fairness, you would like that to occur with you this year. It might be that you hold Easter and its religious celebration quite close to your heart and there are strong family traditions for you but not the other party. You should make a note of this and any other traditions that can ultimately form part of your agreement.
Making a note of your goals and deal-breakers is key, but also important to attend mediation with an open mind. You might not be able to predict the ultimate outcome and at the end of the day, you might be willing to forgo one of those things on your list if it ultimately allows you to reach an agreement on all or most other issues. An open mind as to the outcome is key to a successful mediation.
If your matter relates to property, then you should be across your property pool. You should send through to the mediator before the mediation, a property schedule. If possible, this schedule should have agreed values. And if values are not agreed, then a column for one party and the other party with the value that each party says.
You should take whatever steps you possibly can to reach an agreement about what is in your property pool before you go to mediation. If you have not reached an agreement about the property pool, then a large portion of the beginning of your mediation will be spent negotiating the value of the property pool. It is important that you operate off an agreed property pool, because if there is no agreement and you try to negotiate based on separate pools, then you are less likely to reach an agreement.
If you have the assistance of a lawyer and you are either attending with your lawyer or attending on your own, have your lawyer prepare a basic agreement in line with where you think the mediation might resolve. If you know for example that you and your partner agree on certain arrangements for the children, then have that part of the agreement documented. If you have a general idea about how the property might be resolved, for example, you may both agree that the former matrimonial home must be sold, then your lawyer might help you prepare an agreement about that so that you have a document that you can work towards as a final draft. Make sure you bring along, or email to the mediator, a Word version of that agreement so that it can be altered on the day if you do reach an agreement.
Finally, before you attend your mediation, you should get independent legal advice about what the possible outcomes are, both for your property and parenting matter. It is important to remember that your mediator is an independent facilitator. Their role is not to provide you or the other party with legal advice. You should at least obtain advice about how a parenting matter is decided by the court and the things taken into account by a court in determining what arrangements should be put in place for children. You should also understand how a property settlement is determined by the court and the steps that the court has to take in working out what settlement should apply to parties. You should receive advice about your likely outcomes and what the law says about those outcomes.
If you take the opportunity to prepare properly for your mediation and in particular receive some advice about what is likely to occur in your matter, then your chances of resolving your matter at mediation are greatly increased.
