The thought of entering into mediation as a way to address conflict – whether it’s a family, work or a commercial matter – can be terrifying for a lot of people. Dread doesn’t even begin to explain it. As mediators, some of the best advice we can give, is to be prepared. And sometimes, that involves seeking the advice of specialists.
Yes, being prepared means doing your homework. If it’s a property settlement between parties, then valuations will be needed to support various assets in the pool – and ideally this work is completed prior to mediation day. Other times, one party may benefit from seeing a counsellor or specific type of expert such as a psychologist specialising in the needs of children. During the confidential intake session, or introductory phone call, after hearing about your personal circumstances, the mediator may recommend you seek the services of a particular expert. Importantly, the details of that session(s) is also completely confidential, and is not admissible should the matter proceed to court. That’s an important thing to remember; confidentiality is extended to whomever you see in relation to the mediation. We’ve compiled an overview of some of the experts that help parties prepare for mediation.
Sometimes during intake, one party will be extremely apprehensive about being face to face with the other party – and as a result, this may impact their ability to make sound decisions during the mediation. If the mediator determines there may be a power imbalance or the party has shared their concerns, the mediator may suggest the party see a counsellor or psychologist prior to the mediation to help with strategies around controlling their emotions and staying focused during the mediation so they can be capable of making sound decisions.
Teachers can offer valuable insight into the emotional coping mechanisms of children whose parents are separating, as they play an important role in the ongoing wellbeing of the child. Especially for primary aged children, teachers will be attuned to behavioural changes and signs of distress and confusion. An open and honest conversation with a teacher can provide important feedback relating to how the child is coping with the separation. Teachers of older children will notice impacts on academic performance and class participation, among other social behaviours – all of which can be helpful information for parents wanting to parent in the best interests of the child. The school may also offer counselling and pastoral support for the child.
While not all family dispute matters are appropriate for mediation, (often due to issues around safety of one party or when mediation would not be in the best interests of the child), many parties do enter family dispute resolution even if there has been some history of family violence. This would follow careful consideration of the parties involved and after a thorough assessment by the mediator during intake. Given research indicates women who have experienced family violence (including physical, psychological, financial, and sexual) are particularly susceptible to post traumatic stress disorder (PTSD), a mediator may suggest the party see a trauma specialist prior to the mediation. The trauma specialist will work with the party to help prepare them for stimuli (facing the perpetrator of the violence) that may retrigger the trauma, putting them at a serious disadvantage for mediation. Seeking the services of a trauma specialist may also provide additional insight as to whether the party can self-determine during mediation. This may result in a shuttle mediation (where the parties are in separate rooms, arrive and leave at different times and only communicate through the mediator) or it may be that the matter is not appropriate for mediation at all. In this event, the mediator will issue a Section 60i Certificate and the matter will proceed through the courts.
A child specialist works with the children of separated parties in family mediation to ensure they have a voice in the mediation. Generally suitable for children aged five and up, the child specialist will engage in developmental consultation with the child to assess the effect of the separation (and conflict around it) is having on the child. To achieve this, child specialists use specific tools and strategies centred around the different developmental phases of children and teens going through separation. The child consultant also holds separate intake sessions with the parents and joins the mediation, representing the child’s voice in the absence of the child. The involvement of a child specialist is not suitable to every FDR scenario but does help parents focus on the immediate and future needs of the child, rather than themselves. Kids have a voice in separation and through working with a child specialist, they can have their voice heard.
Some parties involved in property or commercial disputes seek out the services of a specialised accountant to help with several issues around assets and finances. Accountants with forensic skills can assist with valuations, complex tax and other group structures, leases, verification of matrimonial assets and liabilities and other in-depth financial and accounting structures including self-managed super assets. The assistance of a specialist accountant can be of benefit to one party who has less insight or understanding of the financial scenario or asset pool than the other.
Most parties involved in mediation do seek legal advice at some point throughout the process. For some parties, the mediation process may begin through the suggestion of their lawyer, other parties involve lawyers once they have a parenting agreement, to ensure it does not put them at a disadvantage prior to signing the agreement. Lawyers can also be consulted throughout the mediation – parties sometimes take a short break to call their lawyers regarding a particular issue that has arisen. Other parties have their lawyers present throughout the mediation – although the mediator will need advance notice of this to ensure the other party involved is aware that a lawyer will be present.
Other experts with highly specialised skills are also helpful to parties in preparation for mediation. What is important is that both parties are informed and capable of self-determined decision-making, in their interests, or in the case of FDR, in the best interests of the child.
To help you prepare for mediation, we have created a library of helpful information including checklists, tips and added detail around the process of mediation. For useful and relevant information you can download for free, we encourage you to visit our resources page.
Lawyer, Mediator, Conciliator, Conflict Coach + Family Dispute Practitioner, Fresh Start Mediation
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