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Mediate – Don’t Litigate!

Negotiate, Mediate, Collaborate –  Don’t Litigate!

 

Deborah[1] a 49 years old sales assistant was married for 28 years, when her husband Steve[2] left her about 2 years ago.

Unhappy with what was proposed at mediation, she went to court.

4 years later and $200,000 in legal and other costs, she ended up with the same proposal that was offered to her at mediation.

In the meantime, her personal and professional relationships suffered, her child left home unable to handle her anger and Deborah’s emotional health deteriorated.

If you think Deborah’s story is unusual then think again. Going to court is unpredictable and costly. There are no guarantees that you’ll get what you want and worse still you may get less. No matter how great you think your case is, going to court is always risky.

 

How to mediate  so that you get the best results

Whether you’ve chosen the mediation or the collaborative law pathway, there are some essential things you can do to get the best results.  You may be feeling nervous and even sceptical that the process won’t work.  That’s okay to feel this way, accept and carry on with the process.

In financial matters, you will need to know each other’s financial positions early.

If you have property, then valuations or an agreement about the value of your home or other property is necessary. Don’t forget superannuation is also relevant, so you will need to have a current value of your superannuation.

At least a month before the mediation, you should exchange your financial documents which can include:

  • Tax returns
  • Payslips
  • Bank and credit card statements
  • Share statements
  • Loan statements

 

Preparing a joint balance sheet[3] will be a valuable document for the mediation, it will help both of you see what assets and debts you have and highlight any concerns or issues.

Make Time

 

There is nothing worse than having to leave a mediation just when it looks like progress is being made. It’s easy to underestimate the time it takes to mediate property and money matters. Once you get started, you will be surprised how much you need to discuss and how quickly time runs.

Give yourself the time to commit to the process and to make it work for you.

At a minimum you will need three hours.  If you have young children or work commitments, its best to block out the entire day and make other arrangements for your children.

Attitude is everything

If you want the best result, then have the best attitude. I remember one of my clients, took the attitude that he was not walking away from the mediation until an agreement was reached and both he and his ex-felt that it was a “win-win” for them both.

David[4] said

“I knew it was up to me to make this happen.  I took the attitude that just because our marriage failed, didn’t mean that the mediation had to also fail. So I pulled out all stops to made sure our children came first and my ex and I were both comfortable with the financial arrangements”

 

An attitude of win-win is a healthy one. It means that you communicate with confidence, you don’t play mind-games and you stay true to your values, whilst at the same time respecting the other person’s ideas and feelings.

 

It requires taking a balanced view of the situation and brainstorming answers and solutions that work for everyone. It is not a one-sided argument.

“Many people think in terms of either/or: either you’re nice or you’re tough. Win-win requires that you be both. It is a balancing act between courage and consideration. To go for win-win, you not only have to be empathic, but you also have to be confident. You not only have to be considerate and sensitive, you also have to be brave. To do that–to achieve that balance between courage and consideration–is the essence of real maturity and is fundamental to win-win.”

– Steven Covey, author of 7 Habits of Highly Effective People

Speak Up

speak even if your voice shakes”

One of the wonderful things about mediation, is that you get to speak up and say what you need to say. This is because the mediators job is to make sure that you both get the chance to speak in a confidential and safe environment about your children, money or other issues relating to your divorce.

This is not the time to hold back or remain silent. Too often and where people are represented by family lawyers at mediations, they take a back seat and are reluctant to speak, in case they say something that might be wrong or upset the other person.

It’s a given that you need to be mindful of the other person’s feelings, but this is your mediation and your life, so speak up about the important issues.

Rosemary, whose marriage ended after 9 years found her voice at mediation, she described the experience as “liberating” because she was finally able to say what was important to her and to get what she needed to move forward.

“I told my ex, that I was unhappy with the divorce, but I understood my part in it and now, I just wanted us to both agree on our property settlement and to move onto the next stage of our lives separated.”

 

 Find common ground

If your negotiations are stalling, a useful tool is to remind yourself and your ex-partner of what you both have in common. If you have children, then you will both want them to be safe and loved and you have a common goal of protecting them. If you have agreed to sell the family home, then focus on the practical side of the selling process.

I find that when we remind ourselves of what we have in common, it diffuses the conflict and re-ignites the negotiation process.

This is because it’s easy to get emotional and lose control of ourselves in any negotiations, let alone one that involves our children, money and our life. Finding common ground, triggers the logical and practical mind, so that we can move forward in the negotiations.

 

Legal Disclaimer: the information provided herein is not legal advice. It is intended to inform the public. No client’s names have been used and all facts have been changed. Should you require legal advice please contact us on info@cominoslawyers.com.au

 

 

 

[1] Names have been changed.

[2] Names have been changed.

[3]  Sample Balance Sheets are available at http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/forms-and-fees/court-forms/form-topics/Financial/

 

[4] Names have been changed

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