Family Mediation on the Horizon? 3 Common Mistakes and How to Avoid Them

No introduction is needed for today’s post, which comes from Victoria’s own Jane Henderson, Q.C., member of our distance mediation team and author of our immensely popular blog post, Family Mediation: One Lawyer Tells How She Does It:

Jane Henderson, Q.C.

I have noticed three common mistakes people make when they are considering entering into the mediation process.  These mistakes make it difficult to proceed in a positive and efficient way, and sometimes they may make a successful resolution through mediation impossible.

The three mistakes are:

1.  The Positional Mistake:  “There is no point in us going to mediation until you tell me what you want.”

2.  The Disclosure Mistake:  “I won’t show you my documents until you show me yours (and maybe not even then if I don’t think they are relevant).”

3.  The Bribery Mistake:  “I will only agree to go to mediation if you agree to do …”

Let me explain each of these a little more fully.  

1.  The Positional Mistake
Mediation works because the mediator assists the clients to identify and meet their common interests, as a way to resolving the issues which divide them.

“Interests” in this context means the reasons why a given outcome is important for a client.  An interest may be so broad as to be his/her overarching goal, but it may also be quite narrow.  “Position” refers to the outcome a client thinks he or she needs to achieve in order to satisfy his/her interest.  For example:

“I don’t want to be a bag lady” is an interest.
“I want/need you to pay me support of $5,000 per month” is a position.

“I want to be a full participant in my children’s lives” is an interest.
“I must have the children 50% of the time” is a position.

Clients often have no difficulty formulating their positions but, just as often, they don’t really think about their interests until encouraged to do so by the mediator.  So, when one or both clients want to exchange positions, before the mediation has even begun, that is a problem.  If the clients are focused on a particular position, they may have difficulty seeing their common interests and considering other resolutions which will meet those interests.

There is a tendency, once a position is announced, for the person holding it to feel that they have to stick to it at all costs or they will be thought a “pushover”, or they will have “given up”.  Sometimes a client may literally get stuck on that position and therefore be unable to see any other options.  It is hard to keep an open mind and look at all the options if you think you already know what the solution should be.  When clients become positional, it becomes difficult for them to be flexible.  The discussion of outcomes is best left to the latter part of the mediation process, not the beginning.

2.  The Disclosure Mistake
If sharing positions prior to family law mediation is not a good idea, sharing facts and documents, as much as possible, is.  In family law, an agreement made without full disclosure is vulnerable to an application to have it set aside.  Neither this mediator, nor any other mediator I know, will mediate unless there is a commitment to full disclosure.

Mediation requires the same kind of disclosure as the litigation process.  Although it may be done in a more informal way it is still mandatory.  When mediating property and financial issues, one of my first steps is to help the clients come to agreement on what the facts are with respect to income, assets and liabilities.  Only then are we able to consider possible resolution.  Production of the documents which support the financial facts ensures that you do reach agreement on the facts.

So, if you want your mediation to proceed efficiently (and therefore at less cost to you), I think the single most effective step you may take is to provide each other with all the relevant documents prior to the start of mediation.

You may start the mediation process by mediating the production of documents but that will add considerably to the time, and therefore the cost of mediation.  An apparent reluctance to provide documents may also lead the other side to think there is something being hidden.  In any event, production of most documents is not optional – it is mandatory.  There is no point in trying to avoid or stall the production of documents; they must be produced.

The best practice is to ensure that you and the other side each have copies of, or access to, Income Tax Returns, bank statements, loan documents (if you want the other side to contribute to paying off the loan), RRSP and pension statements and other investment statements.

Summaries of the information in these documents may be helpful down the road but, to start, you need to produce copies of the actual documents.  Only then will you have laid a foundation of openness and trust which will make a successful resolution possible.

3.  The Bribery Mistake
Participation in the mediation process ought not to be used to acquire a benefit which would otherwise be the subject matter of mediation.  The reason for attending mediation is because you believe that the process will give you a good chance at getting a reasonable resolution to your issues.  Attendance at mediation must be voluntary and without coercion

A successful mediation requires that both clients come to the table prepared to work in good faith to achieve a mutually acceptable resolution of outstanding issues.  One client can not use his/her agreement to enter mediation as a way to get the other client to agree to do something s/he would not otherwise be willing to do.

For example, “I will go to mediation if you agree to move out of house” is not acceptable. The clients may go to mediation to resolve the terms on how one or the other moves out, but unless a client was going to move out anyway, s/he should not leave in order to get the other into the mediation room.  Apart from the obvious element of coercion, it is not a very effective tactic.  What if the person moves out, and then moves back if s/he doesn’t like how the mediation is going?  Or the mediation-resistant client attends, signs the Agreement to Mediate, but then refuses to enter the process with good faith?

Mediators don’t have magic wands, and they don’t have the coercive powers of the Courts.  All they have to work with is their ability to apply the good faith and commitment of the clients to the process.  If good faith or commitment is lacking in one or both of the clients, the mediation is unlikely to be successful and therefore a waste of your time and money.

It should be noted, however, that the line between what I am calling “bribery”  and what might be called “facilitating the mediation” can be blurry and sometimes difficult to determine.  For me, and I think for most mediators, it is not “bribery” if one client agrees to pay for all or part of the mediation in order to get the other client into the room.  Or, to use the “vacating the house” example given earlier, it is not bribery if one of the clients had planned to move out anyway and the other client says s/he will start the mediation when they are living separately.

Reframing in the Positive
As mediators, we like to reframe the discussion to emphasize the positive, so let me summarize by sharing some tips for a successful mediation:

1.  Come to the mediation table willingly, with an open mind and a willingness to be flexible.  Think about what interests you might have in common with the other side and how those might be achieved.

2.  Provide full disclosure right from the start.  Do it voluntarily and with good grace.

3.  Come to mediation because you believe in the process.  Come prepared to work in good faith to reach resolutions that work for each of you.

1 thought on “Family Mediation on the Horizon? 3 Common Mistakes and How to Avoid Them”

  1. If I could only get my clients to read “Getting to Yes” by Fisher,Patton and Ury before coming to mediation I’d be a happy man! Love point #2 as it encapsulates the whole bargaining over positions versus interests which is the cornerstone the Getting to Yes book.

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