The Family Court Mediation Pilot

July 29, 2013 at 3:53 PM

A Steep Learning Curve

Published in The Family Advocate December 2005

We should not really be surprised that the mediation pilot operating in North Shore, Hamilton, Porirua and Christchurch Courts is highly educative for those who take part.

Given therefore, that we family law practitioners and mediators have little experience of "true" mediation in the family law context, there is much learning to be done.

Basic Negotiation Principles: Even if these principles are known by the parties, the mistake is to regard them as trite or obvious, rather than profound and challenging. It is only during mediation, that the true meaning and implications of these principles is finally understood. Take for example, the principle that settlement requires both parties to be satisfied with the proposed outcome. The significance of this is, that the parties are forced into a process of mutual persuasion. Simply airing grievances and asserting rights will not take a party very far. The trick is to make proposals which it makes sense for the other party to buy into. BATNAs (Best Alternative To a Negotiated Agreement) and WATNAs (Worst Alternative to a Negotiated Agreement) must be considered. Your opponent is unlikely to agree to anything better than your BATNA (which is your best case scenario). But you will not want to settle for anything less than your WATNA (worst case scenario). Therefore, you settle somewhere in-between. That is not your ideal. So you need to do a risk assessment. You should ask the question : "If I do not settle as proposed by the other party, what is the risk that I will be worse off by pursuing my other remedies, than by settling now?". Such questions may be difficult to confront at both an intellectual and emotional level.

Self Empowerment : If the self responsibility nettle is grasped, what a difference that can make. During, or perhaps sometimes after mediation has concluded, there may dawn the realisation on the parties that their distressing differences can be resolved without the need for a phalanx of counsellors, psychologists, lawyers and judges. Amongst other things, their personal lives need no longer be under the legal spotlight, and the drain on their financial and emotional resources can end.

Prosaic : Do not let mediators like myself fool you and your clients into thinking that mediation is an endless process of wonderful new self realisation and boundless goodwill. It is not. It involves drudgery, unpleasantness and frustration. It is patience and persistence, rather than brilliance, which brings the results.

Category: Family Disputes