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What if Mediation doesn't work?












There are many reasons why mediation may not even go ahead let alone result in non-agreement.


Firstly, a mediator may determine at intake that your case isn’t suitable for mediation. This could be due to a history of family violence, power imbalance, risk to safety of people or property, not in the best interests of the children, or one party may not be emotionally or psychologically ready for negotiation.


So where do you go for help?


It is beneficial to do a parenting after separation course to help you minimise conflict and improve your coparenting relationship. If you have a parenting plan or orders already in place and were thinking of mediation to resolve disputes, you could go down the path of engaging a Parenting Coordinator to help you implement what was originally agreed, improve communication and resolve day to day disputes.


The last resort would be the legal path which will enable your case to be negotiated between two separate lawyers or engage in lawyer assisted mediation. If your case does not reach agreement, then you could go to court to seek a judge ordered outcome that is in your children’s best interests.


Secondly, If the mediator assesses your case as suitable for mediation, then this is where you and your ex have the opportunity to explore the issues, identify options, and reach agreement.


Going into mediation with the right mindset is key to helping you get a good result, so if you are thinking this is what I want and I am not budging on that, mediation will not work.


Mediation is all about both parties negotiating an agreeable solution. Some clients think if they state what they want, then the mediator will determine who is right and make the determination of the result. This is NOT the case. Mediators are neutral facilitators, helping clients to unpack the issues to delve deeper into needs and wants, how it affects the children, identify options to consider, reality test how those options may work, and enable clients to negotiate a possible solution.


Many clients may talk about a phased solution so that an agreement may start out with a short-term solution gradually shifting to the long-term solution over a period of weeks or months. This is very important because if you agree on a short-term solution in the hope to come back to have it changed a couple of years down the track, you might find the court doesn’t want the status quo to disrupt the children’s lives unless there is a significant change in circumstances such as children starting primary school, children starting high school, moving out of the area, children not coping emotionally with level of conflict between coparents etc


There may be some issues that reach agreement in mediation and some issues that do not reach agreement in the session. These are documented with the opportunity to return to mediation after actions to explore those unresolved issues can occur by seeking legal advice, valuations of assets, child informed mediation to obtain the children’s voice on the what they want for the future, or attend parenting after separation programs, parenting courses, gain mental health support, or parenting coordination to help you implement what has been agreed.


The key areas for help are;


Separation Preparation - Emotional support through a Divorce Coach, Parenting after Separation course, Parenting courses, Anger Management Courses, Legal Consultation, Counselling, Psychologist


Gain Agreement – Mediation, family dispute resolution, lawyer assistance, court orders


Implement Agreement – Parenting Coordination


You have a better chance of mediation or family dispute resolution being a success, if you have had the emotional preparedness to negotiate. Separation preparation can help you shift your mindset from resistance, inflexibility and uncooperativeness due to the grief of separation. Once you have the emotional support to help you accept and plan what’s needed to have the courage and confidence to get through the challenges ahead, you will be in the right mindset to negotiate to create the future for you and your family.


Author – Cheryl Duffy, Divorce Coach, Mediator, Parenting Coordinator

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