In days gone by mediations used to occur in one big boardroom with a mediator down one end and each party and their lawyer on opposite sides of the table, eyeballing each other across the table. This type of mediation and negotiation is rarely successful these days, particularly in the heat of a family law separation.
Whilst such mediations might make for great television or movies, in practice it is not a process that is adopted by a good family law mediator.
Most mediations these days are run by shuttle mediation. It is rare in a family law mediation to have the parties in the same room, regardless of whether there are any issues relating to family violence or an imbalance of power between the parties.
In our years of experience in dealing with separating couples, the most effective way to resolve a matter is to have the parties in separate rooms. This allows the parties to each have their own private space where they can work through the issues involved in their matter, seek advice or counsel from a solicitor, whether the solicitor is there or by telephone, and have a private space where they can talk to the mediator about their concerns, noting that the mediator can’t give them advice, but can certainly listen to and understand the issues and their thinking behind the decisions they are making.
Putting parties in the same room, puts them under significant pressure. Parties find themselves in a position where they might feel that they can’t have their say or be truly open about the issues and concerns that they have for fear of how it is going to be received by the other party, particularly if it is being received directly by them across the table.
The only circumstances where having parties in the same room can be effective is during any introductory comments, by the mediator to the parties. In those circumstances, often the mediator will place the parties so that they are facing the same direction, that is the mediator without looking at each other. The mediator will explain to them the process involved with the mediation and the advantages and disadvantages of resolving the matter with particular emphasis on the disadvantages, in the hope that understanding the family law system and the delays within the courts’ system will encourage the parties to try to resolve the matter.
That is the only circumstance in which the parties being in the same room is appropriate. The benefit of that process is that both parties receive the same information at the same time, and it allows the parties to understand that they have each received the same information.
Of course, a shuttle mediation is particularly effective in circumstances where there are issues of a power imbalance or domestic and family violence. In those circumstances, parties should not come into contact with each other. If they do, there is a risk that the mediation will not be successful.
Finally, participating in a mediation by Zoom or MS Teams is also an effective way of managing a shuttle mediation. The mediator dials in to each of the rooms at separate times. The mediator may bring solicitors together to discuss any legal issues, but more often than not, the mediator will individually check in with a party as opposed to doing that at the same time.
For those reasons, shuttle mediation is the most effective way to work towards resolving your matter.
