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GETTING READY FOR MEDIATION24 October 2016
Mediation plays a big part in family law. It provides an alternativeto going to Court and in so doing usually comes with the addedbene�t of reducing costs, providing the opportunity for spousesto tell their side of the story and take ownership of an agreedoutcome and providing a quicker resolution. Sadly, however it isoften a lost opportunity.
The lost opportunity in mediations usually comes whenmediations that are held at an early stage. Opinions may di�eras to why this is the case, perhaps it is that the spouses do nothave su�cient information or they have not su�ered enough“pain” both in terms of cost and time spent to know the truevalue of a settled outcome?
What is clear however is that most mediators say that people(self-represented) are often not properly prepared for themediation. The result is that mediations will often fail where theymight otherwise have settled or one of the spouses will end upwith a worse settlement than might otherwise have beenachieved if they had done their homework beforehand.
So what can people do to better prepare for mediation? Here aresome key points to consider:
Know the facts, the case and the costs: Spouses attendinga mediation need to understand what the issues are. For amediation to proceed there should be an understanding ofthe background facts, the issues in dispute, the legalissues, the commercial and �nancial considerations and
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the personalities of the people involved in the dispute.Know what the costs to date are and what they are likely tobe if the matter does not settle.Procedure: Know where the mediation will be held andwho will attend. Consider what documents the mediatorshould read to understand the key issues in dispute. It isalso important to prepare a draft settlement agreement orany other documents that may need to be signed on theday to resolve the dispute.Prepare to negotiate: The mediation will involve eachspouse being asked to compromise on their startingposition. Parties should therefore prepare themselves fornegotiation. Many people who are represented will wantto say something and they will be encouraged by themediator to do so. In that case, their solicitor should helpthem prepare what they intend to say. Each spouse shouldalso consider the possible options for settlement includingamounts and terms of payment. Spouses should considertheir “bottom line” – at what point they will walk away fromthe mediation without a settlement. Parties should alsoconsider the question “what might happen if we do notsettle”? and “what might be the cost of not settling”?.Contact with the mediator beforehand: It is useful forparties to contact the mediator before the mediation anddiscuss the legal and personal issues. The mediator mayhave permission to tell you something about the otherside’s motivations and key issues although this is verymuch determined on a case by case basis.
By taking the time before the mediation each spouse is likely to�nd that they are better prepared, more able to negotiate andtherefore able to get better results from the mediation.
Having said all of that, there is always the preliminary questionas to whether particular spouses are suited to mediation – thisshould be carefully considered in each case.
Disclaimer
The information contained on this site is for general guidance only. No person should act or refrainfrom acting on the basis of such information. Appropriate professional advice should be soughtbased upon your particular circumstances because the application of laws and regulations undergofrequent changes. For further information, please do not hesitate to contact Michael Lynch FamilyLawyers on [email protected].
Conference or Professional How are Signi�cant Gifts Treated
