The importance of courtesy in Family Law Mediation: Why Respectful Communication Matters

The importance of courtesy in Family Law Mediation: Why Respectful Communication Matters

Family law mediation often takes place at a difficult point in people’s lives.

Relationships have ended. There may be significant disagreements about children, property and finances. Communication between the parties may already be strained, and in some cases completely non-existent or the parties may have been involved in legal proceedings for a considerable period of time.

Parties are often weary, frightened about their future and overwhelmed. Many of the things that they saw in their future have disappeared. Emotions can be running high. In mediation our expectation is that parties will move from a litigation or adversarial mindset to the mindset of settlement and compromise. In mediation, we are asking parties to “park” past grievances, hurts, failings and disappointment and think rationally about their future or that of their children. This can be very hard, especially against a backdrop of litigation or protracted negotiations.

Nobody expects everyone to arrive at mediation agreeing with each other.

But there is an important difference between disagreement and disrespect.

Courtesy during mediation does not mean you have to like the other lawyer or their client, agree with their position or avoid advocating strongly for what matters to you.

It means participating in the process in a way that allows difficult issues to be discussed and genuine negotiation to take place.

That starts with something very simple: how we communicate.

The language used during mediation matters. The language and experience of the parties leading up to mediation matters.

Communication leading up to the mediation

In many pre mediation appointments, parties explain to me how exhausted they are from the process of negotiating, including responding to correspondence.

Many describe the need to end this constant engagement as the major motivator for settling. It is not so much about ending the relationship with their former spouse, but often with their former spouse’s lawyer.

Communication in the mediation process itself

Inflammatory comments, personal attacks, sarcasm and unnecessarily aggressive language rarely move negotiations forward. More often, they cause people to become defensive, angry or less willing to consider a proposal.

Strong advocacy and respectful communication are not mutually exclusive.

It is possible to make a proposal, identify a problem with the other party’s position or make it clear that their client will not agree to a particular outcome without making the negotiation personal or unnecessarily adversarial.

A calm and constructive approach from everyone involved can help keep the focus on resolving the issues rather than escalating the conflict.

How you communicate about the other party is also important. Using terms such as “the husband” or “the wife” can be dehumanising for some people. Consider using first names. Refrain from slipping into derogatory or unhelpful commentary on the other party. Suggestions that one party may be a:” gold digger” or “tight fisted” or “mean” are also unhelpful.

Suggestions that a party may be “mad or crazy or a narcissist” are not going to progress a matter, especially if there is no diagnosis of existing mental health issues or disorders. It can all just be adding fuel to an already raging out of control fire.

Courtesy also means allowing the mediation process to work

There may be times when you need to listen to something you disagree with. There may be proposals that frustrate you. You may feel that the other party is being unreasonable.

But immediately dismissing a proposal, interrupting, talking over the top of the others, reacting aggressively or refusing to engage with an idea can make it much more difficult to explore whether there is any room for agreement.

Ask a question. Seek clarification. Speak privately with your lawyer or client or take time out to think about your response. Consider why the proposal has been made and whether there is any part of it that could form the basis of further discussion.

Respect also extends to the practical aspects of mediation.

Arriving on time, being prepared (including your mediation position paper being delivered on time to your opponent and the mediator), having relevant information available and giving the mediation your proper attention all demonstrate respect for the process and for everyone else’s time.

This is equally important in online mediation.

Joining from an appropriate private location, ensuring your technology is working, minimising interruptions and remaining engaged throughout the mediation can make a significant difference to how smoothly the day runs.

There is also an important distinction between courtesy and agreement.

Being respectful does not mean giving in.

It does not mean accepting behaviour you consider inappropriate, agreeing to an outcome that does not meet your needs or avoiding difficult subjects because they may create tension.

There will be times when a party or their lawyer needs to say no and that can always be done without dramatics, threats of court or cost applications.

There will be times when a position needs to be challenged.

Courtesy is not about pretending that conflict does not exist

It’s about deciding how we manage that conflict while trying to resolve it.

Family law matters are inherently personal. For the people involved, the issues being discussed can affect their children, their financial security, their home and the way their family will operate into the future.

That makes respectful communication more important, not less.

A productive mediation does not require everyone to agree with each other throughout the day. It does not require everyone to be happy with every proposal, and it certainly does not require people to avoid robust discussion.

Listen. Consider. Ask questions. Make proposals. Reject proposals when necessary. Take time when you need it. Advocate firmly, clearly and precisely.

But do it respectfully. Move forward towards resolution.