• McKenzie Friend Australia

Family Mediation is like shaking a Kaleidoscope - concepts flash before you for new patterns on life

I recently spoke to a gentleman who had not seen his children in 330 days. He did not know where his children were living. There were no DVO's prohibiting access, just an ex-partner refusing visitation despite a fairly amicable co-parenting and visitation regime operating for 2 years. This man was at his wits end seeing his only option was to sporadically attend upon his local police to see if they could help locate his kids. They couldn't of course, because it's a Federal, not State issue.

This gentleman 10 days before calling me, had attended mediation on the Gold Coast which had taken 6 months (182 days) to schedule with his ex. All he was able to achieve at this mediation was to agree to phycology sessions for the children, as the ex-wife said they were 'mentally scared' and scared of him. He walked away from this mediation with nothing else - no access, no address, no phone contact. NOTHING! It was his opinion the mediator and the opposition's lawyer had not guided his family through this process fairly. His ex had a lawyer present and he attended alone. The balancing scales were not equal.

It was evident this gentleman had gone into the mediation really under-prepared, and lacked knowledge and support. Consequently the mediation kaleidoscope displayed the political agenda of the ex-wife only. He was utterly bamboozled.

He was not even made aware of, or given the Section 60i certificate by the mediators. He had to go back and ask for it 21 days later after speaking to me.

If you are going to participate in Mediation, you need to know Mediation follows no set procedure, results are not assured, and mediators cannot compel parties to agree unless those parties wish to do so. Despite these confronting downsides, mediation can sometimes be an efficient way of settling disputes. Here are some tips to best prepare you for your family mediation to achieve a Kaleidoscope of hopefully positive colour patterns for your life and that of your children.

  1. Be prepared for your mediation. Spend your time and energy thinking through what co-parenting items or subjects you feel are a priority and what they look like. Make notes. Better still, write out your parenting plan that you seek and take it to the mediation. Consider options, alternatives and scenarios in advance. Do your research, ask friends, read up on parenting plans or parenting order articles. Find out what subjects should be covered in parenting plans. Seek advice from a lawyer or an experienced McKenzie Friend.

  2. Expect the unexpected. Understand that new information, developments or scenarios may arise. If this occurs try to see it as a way of reducing or eliminating the problem.

  3. Listen. Keep listening. Do more listening! You will be amazed at what you miss if you don't listen and conversely what you pick up. Keep your focus on the problem and the practical situation to be resolved, not on your ex's demands.

  4. Watch the use of tactics and game playing. All mediation publications pen the process will only work if it is approached with genuine good faith by both parties. It is my opinion that either one or both parties always go in with personal agenda's and tactics. If you are in mediation there is a dispute or else you wouldn't be there! Just don't hold aggressively onto all of your positions. There are compromises to be made for the best interest of your children.

  5. Walk in the other parties shoes. Try to look at the issues through the eyes of the opposition party and think about what also works for them.

  6. Know your business. Be clear about your issues and be ready to clarify and explain. Wishy washy will not produce positive feedback.

  7. Do not underestimate your opponent. You can be bamboozled, distracted, taken off course and your priorities set aside by skilful, knowledgeable, well prepared and supported opposition. Usually the one who calls for mediation is on the front foot in terms of information and direction. Prior to mediation seek advice on your legal position and your rights and obligations. Pick your support person for mediation wisely and request permission for their attendance at least 7 days prior to the mediation. If you are proceeding with a private mediator, lawyers are permitted to attend. If you can't afford a family lawyer, think about engaging an experienced McKenzie Friend. This way you are attending negotiations with a limited handicap against the other party.

  8. Know your bottom line. Think about what you will do or say, offer or compromise on. But always know what your final position is on your key dispute area. Knowing these will assist you being able to determine whether you have achieved a good result or not.

  9. Accept nobody 'wins' in mediation. A good outcome is usually something you and your kids can live with given the circumstances.

  10. Mediated resolutions are not binding on the parties. The can constitute a basis for entering into binding Consent Orders which need to go through the formal lodging process of the family court system. Both parties need to agree to this to be completed. When parties have their lawyers, they usually draft the agreement. If parties do not have lawyers, a mediator who is also a lawyer can draft the agreement. The parties are then encouraged to seek independent legal advice, and to execute the agreement in the presence of the lawyers providing it.

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