1. Remember why you have come to mediation: to reach a solution.
Mediation is only worth embarking upon if you are committed to trying to sort out the problems facing you. It helps to be open-minded so that you can explore what you might achieve and what you want to achieve, and for both of you really to listen to the other person’s point of view. The more you understand and are aware of the other person’s concerns, the better you will be able to address them with the mediator’s help and reach a mutually acceptable solution.
If it is possible, try to change the way you think of your former partner so that he or she is no longer an ex, but instead a co-parent or co-owner of property with a similar interest to you in resolving your differences. If there are children involved, try to look at things from their perspective, and think about how best the two of you might be able to fulfil their needs at this difficult time and in the future. Just because the two of you may have decided to separate children will always provide the link between you. You may have to attend school functions together – parents’ evenings, school plays, one day your children may graduate, they may enter a relationship or get married and they may have your grandchildren. If you have children, it is important for you both to find a new way of working together as parents.
2. Be aware of, and take responsibility for, the effect of your words and behaviour in mediation.
Emotions can run very high in a mediation session. Mediators understand that there can be a natural tendency to argue over what went wrong or to get hung up on a particular incident about which you know you disagree. Like all people who were once in a close relationship, the two of you will each know exactly what to say to wind each other up. In relationships, everyone has their own truth and people see things from different perspectives. You may never be able to convert the other person to your point of view and you may find that agreeing to disagree releases you to concentrate on the immediate issues that have brought you into mediation.
Also, bear in mind that the mediator will remain impartial so there is no point in trying to persuade him or her that your view is the right one. It is up to the two of you with the help of the mediator to find a way forward that you can both live with and that is fair. A way forward that is acceptable to both of you. It may well be your own bespoke agreements that suit you both as opposed to an agreement a court might order. In reality, and in my experience, this seldom suits both of you.
If you can resist the temptation to fight fire with fire and instead focus on the issues rather than the person, progress becomes easier, and we often find that such an approach by one is reciprocated by the other. Take the time to think before you react and keep an eye on what you want to achieve.
3. Be aware of your best and worst alternatives to negotiating a solution in mediation.
It may help to have a clear idea before you enter mediation of what sort of solution you might be prepared to accept, but it also helps to understand what your other options are if mediation is not successful, for whatever reason. In most situations that we see, the main alternative option people think they have is to go to court but this is not always the case, negotiations through solicitors without making a court application may help to sort out some issues that you do not feel able to pursue face-to-face in mediation, or collaborative law may provide the means for a breakthrough.
For some people, doing nothing may be their best alternative. Although in a family law context there is always the significant risk that doing nothing might bring about a court application from the other person. By doing nothing the other person might think you are deliberately delaying or refusing to engage in attempting to resolve matters. There is no question that compared to mediation, going to court and asking a Judge to make a decision will be expensive and the result may be unpredictable. The question you might ask yourselves is whether, compared to the solution on offer, these risks are worth taking for you.
4. Take legal advice.
Many of our mediation clients are referred to us by our fellow lawyers, but we encourage everyone who comes to us for mediation to take some legal advice before agreeing to a mediated settlement. If you decide to discuss matters using the forum of mediation you can still take legal advice at any time during the mediation process. Particularly, in financial mediation, after you have both given your financial documentation. A solicitor will give you some ideas on how you might look to settle your matter, and a feel for what a court might order in your circumstances. Mediators can give legal information but not specific legal advice. The legal advice you receive from your solicitors will enable you to evaluate your alternatives to a mediated solution.
It is important, however, to remember that the legal process and the mediation process are very different forums. A financial settlement you might obtain on a good day from a sympathetic court may well be achieved at a much greater cost to you both. Mediation can be specifically arranged to suit your timescales whereas a court application might take a year or more before a final order is achieved.
5. Take a long-term view.
If it is financial or property matters you have to deal with, many people report a greater sense of closure from having worked through issues in mediation than if they had negotiated at arm’s length, or left it to a court to decide. If your differences are about your children, mediation offers the prospect of a new way to talk to each other about parenting together apart and a process, with a trained third party, to help you to do so constructively.
It is often daunting and sometimes scary to put aside the past – which you know – and look to the future, with all its uncertainties, but mediation can give you the opportunity to explain what you want your own future to look like and see if that might be a common vision. It happens more often than you might think.