Mediation

Mediation

It can be confusing trying to understand the kind of legal help you need in family law disputes, especially when you are at the beginning of a separation or divorce process.

Most people are aware that they can apply to the Family Court to resolve their dispute. But many people are keen to avoid court wherever possible. the emotional toll, uncertainty and expense of such litigation can be significant, not to mention the likelihood of this process increasing tension and hostility – especially when children are involved due to the negative impact this can have on them.

Mediation is an alternative process to Court which allows you and your ex-partner to set your own agenda.  Our family mediators have undergone extensive specialist training so they can assist you with discussions in a constructive, non-confrontational way that will work for your family and will ultimately help you reach your own decisions at a lower cost.

“But we’ve tried marriage counselling – it didn’t work!”

Many people think mediation is just the same as seeing a marriage therapist, but it’s a completely different process with different goals. The aim of marriage counselling is usually to try to make a marriage work, or at least understand why it’s not working, looking at emotions, relationship dynamics and behaviour patterns. Mediation is about facilitating discussions so that you can ultimately make decisions about how the future will look following the end of the relationship.

The mediation process is productive and structured and is well known for protecting and improving relationships compared to the traditional routes.

Benefits of mediation:

  • The mediator will assist you through your negotiations at your own pace so that you don’t feel rushed, confused, or ambushed.
  • It is a voluntary process that provides a safe space to talk through difficult issues at your own pace.
  • Communication can be improved, and the risk of misunderstanding is significantly reduced by the fact that you can talk directly to one another in the same room (or virtual room).
  • All discussions are confidential (except in very limited circumstances) and any proposals or discussions that take place cannot later be brought up in legal proceedings.
  • It recognises that parents know what is best for their children and enables them to be in control of decisions, rather than a Judge or Magistrate who will have never met them. The mediator can help you create your own Parenting Plan to set out the arrangements you want to record.
  • The mediator is completely impartial and will not take sides or give either of you legal advice. They are a facilitator to encourage discussions in an even-handed way.
  • The timeframe and pace are under your control, meaning no waiting for Court dates and dealing with lengthy delays. Equally, you can pause the process and come back to it later if it feels too soon or further information is needed.
  • The mediator will prepare a note of decisions that might be made within the process in a form that can be easily converted into a binding Consent Order by a solicitor and approved by the Court if appropriate.

Is mediation right for me?

Just as every family is different, there is no one-size-fits-all way to deal with relationship breakdown. If you have separated on amicable terms and you are both committed to reaching a settlement that is best for your family, mediation is the ideal forum for you to achieve this. The mediator can ensure that the arrangements you agree are likely to be enforced by a Court when it comes to converting it into a Consent Order and that you have considered all the details.   They can help you move past areas of impasse and offer practical ideas.

Even if you think you will ultimately need a Court to make Orders, it is now a requirement in most cases that you try mediation before applying to the Court. You will be required to attend an individual appointment, known as a Mediation Information and Assessment Meeting (or MIAMs) with a mediator to determine whether it could offer an appropriate alternative to Court proceedings.

Mediation works best when both parties are in a good frame of mind to mediate and are actively engaged in the process. Becoming ready for mediation can be a process in itself. It is normal to feel sad, guilty, angry, or confused following a separation and none of these feelings need prevent you from ultimately engaging in the mediation process. It might, however, be too early to enter mediation and it’s possible that counselling, talking to a GP or a family therapist might be a better starting point. We can direct you to good quality support to help you make better decisions later.

Adjusting the pace can be very helpful and is easily achieved in mediation. This is particularly important when one person is further ahead with their adjustment than the other. Either delaying the start of the mediation process or using it to initially discuss interim, holding arrangements can be a good option. Pressing ahead with Court proceedings when one person isn’t ready is a guaranteed way to make a parenting relationship worse.

I’m interested in mediation – what do I do next?

The first step is to arrange an individual meeting with a mediator, following which the mediator will invite your partner to attend their own individual meeting. This enables the mediator to give each of you a thorough explanation of the process to help you decide if it is right for you, both emotionally and practically. You will have the opportunity to ask any questions and set out the issues as you see them.  If, following this discussion either person does not want to proceed – either because there has been domestic abuse, issues of control or simply because they do not think it is suitable – then you can choose another process option instead.

If you’re interested in mediation and would like to discuss arranging an individual meeting, our Resolution trained mediators, Alice Scambler and Susi Gillespie are here to chat about whether it would be suitable for you.

What if mediation isn’t appropriate?

Mediation can’t work for everyone. It is not a substitute for legal advice, nor is it an opportunity for one party to bully or control the other. For some disputes, going to court is the more appropriate option. If you fall into this category, you will need a family lawyer with strong litigation and court experience who can guide you through this process, keep costs down wherever possible and push for a speedy resolution. Our team of family lawyers have a wealth of experience in successfully helping clients through the court system.

What types of issues can be dealt with at mediation?

Mediation can be used to discuss any aspect of family breakdown including:

  • Divorce
  • Financial aspects associated with divorce including financial support, properties, lump sums, pensions and business assets
  • Arrangements for where children should live and how much time they should spend with the other parent
  • Planning for difficult conversations with children and parenting styles
  • Unmarried disputes about finances
  • Disputes about properties
  • Interim arrangements
  • Issues about possessions and arrangements for pets
  • Any other issues – you set your own agenda!

How will the mediation process work?

There are different ways you can approach mediation, depending on your availability and what makes you feel most comfortable.

Sole Mediation

In the most common mediation set-up, following your individual meetings, a series of joint meetings will take place with the mediator to enable the various issues to be discussed. Between meetings, it is likely that you will have a ‘to do’ list which might include obtaining financial information such as bank statements, pay slips and pension information or looking at the cost of housing or eligibility for a mortgage. You will also have the opportunity to take legal advice between the sessions. The mediator remains neutral and will give information about likely outcomes and different options but cannot give legal advice to either party. Once you and your ex-partner have provided any missing information and sought advice, you can usually make progress at the next session towards reaching financial decisions and practical arrangements.

Mediation has moved seamlessly from face to face to virtual meetings using video and phone-based technology and can be arranged at your convenience.

Shuttle mediation

If even the thought of a virtual mediation session leaves you feeling too anxious, this could be a good option for you.

Once you have the mediator in place, instead of sitting in a room (or a virtual meeting room) with just the mediator and your ex-partner, you can be completely separate. You don’t have to see or speak to your ex-partner if you don’t want to. The mediator, having been briefed beforehand by each of you on the issues that need to be resolved, will ‘shuttle’ between you to understand whether – and how – a settlement can be achieved with their help. It is likely to take longer than a sole mediation and it might be that this can convert into sole mediation as you both feel more comfortable with the process.

Co-mediation

This alternative route gives you the opportunity to work with two mediators. It is appropriate where there are high levels of conflict or because there is a particular area of complexity that it is felt an extra mediator can assist with.

How long does it take?

Whichever style of mediation you chose, the process will last as long as it is useful and both of you feel that constructive progress is being made. If a decision is reached on financial matters, the mediator will draft a document known as a Memorandum of Understanding (MoU)  to record the outcome of the sessions and if arrangements for children are decided they can draw up a Parenting Plan. These documents can be given to your solicitor to be converted into an Order that can be approved by the Court to become legally binding if appropriate.  If you are able to agree some isolated issues but have come to an impasse on others, the mediator can write up the areas of agreement and you can chose an alternative process to conclude the remaining areas of disagreement.

If you’re in a mediation process already and need to instruct a lawyer for legal advice and to draw up the paperwork, our team of lawyers will be happy to help – call us today.

“mediation is a highly successful way of helping couples resolve disputes, with agreements reached in over 70% of cases”

The Family Mediation Council

“the impact of conflict before, during, and after divorce emerges as particularly important for the longer-term well-being of children. The extent to which parents are able, or are helped, to reduce their conflict and to keep it away from children is crucial for children’s coping and well-being.”

Supporting children through family change, Joanna Hawthorne 12.03.2003