Before the joint session
This is the most important negotiation you will ever have.
Mediation with a former partner decides where your children live and what you walk away with. People spend more time preparing for a job interview.
None of what follows is legal advice, and none of it is complicated. It is the preparation that separates a mediation that settles from one that does not.
How to prepare
Eleven things that change the outcome.
Read this before your pre-meeting rather than after it. Most of it is work you do on your own, and the parties who have done it are visibly easier to help.
- 01
Choose the mediator deliberately
There are several accreditation systems and a wide range of practitioner backgrounds. Some mediators are former judges, some are psychologists, some are practising family lawyers. None of those is automatically right for your matter.
What to actually compare: relevant expertise, cost and how it is structured, how quickly they can convene, their style — directive or facilitative — and whether they hold separate pre-meetings with each party. A practitioner who does not is skipping the step where most of the useful work happens.
- 02
Prepare carefully, and in writing
Work through these before the joint session. Writing them down matters; the answers change when you have to commit to them.
- What information do you need in order to make a good decision?
- What are your needs, goals and aims — and which of them are genuinely most important?
- Why does each one matter to you? If you cannot explain why, it may not be a need.
- What are all the different options that could meet those needs? Not one option. All of them.
- What would the other person say their needs and goals are?
- How could you meet theirs while still satisfying your own?
- How can you explain your goals simply, without putting them on the defensive?
- 03
Know what happens if you do not agree
Work out your alternative before you walk in. Which of your needs can you meet without the other person agreeing to anything?
Skip this and you will make one of two mistakes. You will reject an option at mediation and then discover you cannot do better acting alone — or you will accept something worse than what you could have achieved on your own.
When you weigh up going to court as the alternative, weigh the whole of it: delay, cost, the stress of it, the genuine uncertainty of outcome, and the lasting damage to a relationship you may have to keep operating for another decade of school pickups.
- 04
Listen, and ask a great many questions
Careful listening is the cheapest thing you can give the other person, and it costs you nothing you were going to keep. Listening is not agreeing. You may discover they need something you can hand over without touching what matters to you.
Do not assume you know what they are thinking. The research is consistent that people are poor at predicting what others want, and worst of all under stress and heightened emotion — which is every separation. Mediation is a controlled room in which you can simply find out.
- 05
Gather information and find the options before you make an offer
People commonly settle on a position before they have the information or have considered the alternatives, and then will not move off it. When both parties do that, the only routes left are splitting the difference — which can be a poor outcome for both — or no agreement at all.
The sequence that works is the opposite: establish what each person needs, generate every option that might meet those needs, and only then assess which option carries the most advantage and least disadvantage for each of you. This is why a well-run mediation does not start with offers.
- 06
Do not dismiss their offer, even if it is unreasonable
Rejecting an offer outright ends a line of discussion that may have led somewhere. Treat it as one option on the table and suggest there may be others worth putting beside it.
Before you counter, consider asking about it instead. Why do they think it is reasonable? What information are they relying on? Asking is not agreeing — and questions frequently produce concessions before you have had to move at all. At worst you learn more about what they want and what they might give up.
Then explain what makes it unworkable for you, and how it could be modified so that it would work. People agree to changes to their own proposal far more readily than they accept yours.
- 07
Explain your reasoning before you state your offer
Lead with the offer and the other person stops listening the moment they hear the number — they spend your explanation composing a response. Lead with the reasoning and they are still listening when the offer arrives.
Give them reasons to engage. Positive reasons first: how this meets a need of theirs. Keep the negative reasons — that they will do no better by other means — in reserve, because they are heard as threats whatever your tone.
If they decline, ask what the problem is and how it could be fixed. Consider conditional concessions: you move on something that matters to them and little to you, if they move on something that matters to you and little to them. That trade is the entire mechanism of a settlement.
Avoid framing anything as final or take-it-or-leave-it. It is heard as a threat, and its force evaporates the instant you make another offer or the deadline passes.
- 08
Say how you feel. Do not act it out
Emotion is part of every dispute and there is real value in both of you understanding how the other feels and why. Venting is different, and it is not useful.
Acting emotionally rather than describing an emotion costs you focus, and the other person has almost certainly seen it before and will stop listening. Describing the same feeling plainly keeps you in the negotiation.
Anger in particular is usually a surface emotion sitting on top of hurt, powerlessness or fear. The conversation that helps is about what is underneath it.
- 09
Do not attack the other person
Mediation is an exercise in persuasion, and criticism does not persuade. Resist the conclusion that they disagree with you because they are unreasonable or acting in bad faith. Two reasonable people routinely reach opposite views on the same facts — they hold different information, different experience and different interests.
Question the logic, not the character. You may have information that changes their view. You may find the reasons you each want something are compatible, and that an option exists that serves both.
- 10
Think about whether it can actually be implemented
Reaching agreement is one step. The agreement then has to be carried out, often for years. It therefore has to be realistic, and both of you — even having compromised — need to regard it as reasonable.
Someone who feels pressured into an agreement is the person who turns out to be slow to implement it. An outcome that technically favours you but that the other party resents is an outcome you may well be enforcing later.
- 11
Take the long view
Picture yourself twelve months from now with this resolved. How much will the issue you are currently fighting over matter then?
Then picture the alternative: twelve months from now, still in dispute, possibly in proceedings, with the costs and the uncertainty still running. For most people that comparison settles more issues than any argument made across the table.
I-statements
The same point, made two ways.
An I-statement describes how their behaviour affects you. It is about you and the problem, rather than an attack on them — which means it is much harder to argue with and much easier to act on.
-
Instead of
“You are so inconsiderate — you always bring the children back late. You only do it to annoy me.”
Try
“I feel stressed when the children arrive late, because I then cannot get them to school on time.”
-
Instead of
“You never let me have them when you are supposed to.”
Try
“I feel sad when I miss my time with the children, because I miss them.”
-
Instead of
“You are being greedy. You want to take everything I have.”
Try
“I feel hurt that a straight half does not account for what my family contributed during the marriage.”
-
Instead of
“You ruined this family. Why did you want to hurt me so much?”
Try
“I feel devastated by what happened.”
Where it goes wrong
Seven habits that deepen a dispute.
Separated couples almost always communicate badly — poor communication probably contributed to the separation. The trap is continuing to use the same patterns to resolve what the separation created.
-
Overgeneralising
All and nothing
"All he cares about is money." It is almost never true, it is impossible to respond to constructively, and it invites the other person to argue about the generalisation instead of the problem.
-
Absolutes
Never and always
"She always spends everything." A single counter-example lets the other person dismiss the whole concern. Describe the specific instance and its effect instead.
-
Incomplete comments
Half a sentence
"I'm confused." About what, and why? Without that, the other person cannot help, cannot respond, and will usually guess wrong.
-
Cause and effect
You made me
"You make me feel sad" assumes they intended the effect. "I am sad" does not. The first invites a denial of intent, which lets your feeling be ignored entirely.
-
Mind reading
Both directions
"Don't be angry with me" — they may not be, and their mood may have nothing to do with you. The reverse is just as common: assuming they already know what you are thinking.
-
Assumed common ground
Mad or bad
Concluding that because they do not share your view they must be unreasonable or malicious. Different knowledge and different experience routinely produce different conclusions from the same facts.
-
Recency
The last six months
Judging the whole relationship, and the other parent, by the most recent and worst interactions. It produces a view of them that your children will not recognise and cannot be asked to share.
Bring this to the pre-meeting.
The pre-meeting is where we work through your preparation together — privately, before either of you is in a room with the other. Twenty-minute first call, no charge.
Children and separation →