Recently I received an enquiry from a colleague:
“I was wondering what the guidelines are for the timeline for participant B when making an appointment for FDR? I use the 21 day timeline for a response, to engage in the process, however if they engage and don’t want to make the appointment for several months, where do I stand?”
“I assess each situation on a case-by-case basis.I am guided by the principles of mediation and the obligations of FDR Practitioners, including and not limited to mediator even-handedness; mediator responsibility for the process; mediator confidentiality; mediator consideration of the individual circumstances; participants’ self-determination; procedural inclusivethisness; procedural consideration of relationships.
“The principle from which all others flow, in my opinion, is participant self-determination. This is my opinion, even considering the obligation of potential participants to ‘make a genuine effort’ to reach agreement regarding the children’s arrangements in mediation before they can file in the Court. The obligation of potential participants to ‘make a genuine effort’ is triggered by a coinciding of their timing.
“It is a fundamental characteristic of mediation that it can go ahead only when the participants are at the table, whether in literally or virtually. If they are not, the choice of each is to
- go their own way
- wait while going their own way
“Each of their choices involves considering their ATNAs (Alternatives To Negotiated Agreements). ATNAs are each of the processes that is available to potential mediation participant, that is not dependent on the voluntary involvement of the other participant. A self-determining participant has the scope to consider each of their ATNAs and to decide on their BATNA.
“Waiting is an ATNA that needs little explanation.
“Going their own way involves considering their other ATNAs.
“As a non-lawyer FDRP, you can provide information and not advice to assist participant A to develop a list of alternative processes and to consider each. (As an aside, it is my firm opinion that this guideline should apply to all FDRPs, independently of their primary qualifications.) How can you distinguish information from advice? Information is what you would say to anyone in a similar situation; advice is individualised.
“The ATNAs of participant A include waiting until the other is ready; asking for a certificate and not filing in court; asking for a certificate and filing in court; commencing legal negotiation etc. Participant A’s ATNAs do not include private negotiations with participant B because this alternative is dependent on the voluntary involvement of the other participant, disqualifying it from being an alternative to a negotiated agreement.
“In my opinion, it is the role of the mediator to take participant B’s decision to postpone mediation, at face value. That is, you do not ask why they would prefer a delay because that would put you in the position of forming all being assumed to have formed an opinion and possibly being seen to compromise or compromising your evenhandedness. You might decide to ask participant B
- “What is important to you about how you come to arrangements with participant A?”
- “What is important to you about the timing of coming to arrangements?”
- “What might you do if participant A decides against mediation?”
and in response to the answers to that question
- “What are the strengths of each of those alternatives, for you and for the children?”
The same questions will assist participant A to clarify their thoughts.
The reason for asking these questions rather than ‘Where do I stand?’ is that the questions above address the principle of interests focused decision-making and the principal of self-determination. The question ‘Where do I stand?’ is premised on the principles of entitlement and mediator-determination. (It is true that once the mediation is underway, the mediator will make determinations about the process. At this stage, however, the mediation is not underway.)
“If participant A decides to wait for a fixed period and/or indefinitely, you might decide to wait for a fixed period and/or indefinitely. If participant A moves on to another of their ATNAs, you might decide to put their file on hold. After approximately 6 months, in my practice, either mediation is going ahead or I close the file.
“In summary and in very general terms, as I see it, a mediator follows the lead of the participants in establishing the mediation; leads the participants in the process of the mediation and follows the lead of the participants with regard to the content of the mediation.