What is mediation?
Family mediation is a form of dispute resolution which promotes speaking openly and honestly with your former partner. Mediation is often promoted by solicitors when you are engaged in a dispute regarding financial matters and children following a separation and, in many circumstances, is a mandatory requirement to proceed to court.
The idea behind mediation is that you are given the opportunity to engage in an open and honest discussion in an attempt to resolve your issues. A mediator will chair the meeting and make sure that neither person takes over the conversation and that each person is given the opportunity to consider what is said and respond.
The mediator will highlight what you can agree on and try to build on this.
If you do not feel comfortable being in the same room as your ex-partner, you can agree to attend shuttle mediation instead. This is where you each sit in separate rooms and the mediator moves between you and voices your respective opinions and proposals. The difference with shuttle mediation is that you do not see the emotion behind the words. In some situations, this is an important protection for a vulnerable person who still wants to try to reach an agreement with their former partner. However, in many cases, it is the motive and the feeling behind what is being said that helps to break down the barriers of what you cannot agree on, and this can be missed if you are sitting in separate rooms.
Advantages of mediation
There are many benefits to going to mediation, such as:
- You stay in control of your own finances or your own children, without solicitors intervening.
- You know how best to approach your ex-partner about sensitive subjects and how they are likely to react so can tailor how you present your views.
- If you are parents, you can maintain an amicable approach and a sense of unity in resolving matters together, recognising that you will always share your children and therefore life will be easier for them if you can get on.
- Mediation can often be much quicker than instructing solicitors who are likely to deal with matters via written correspondence; and then potentially going through the court process if that doesn’t reach an agreement. If matters can be resolved through mediation, parties usually attend 2-3 sessions.
- The individual mediation sessions can be scheduled at your pace rather than being bound by a court timetable; and many mediators are flexible in the times that they offer for appointments, not sticking to the court hours or 9am to 4pm.
- The cost of mediation is often much less than instructing solicitors to communicate on your behalf.
Potential difficulties with mediation
As well as the positives, there are always downsides which need to be weighed up, such as:
- It might not work. If one person wants to engage in mediation and the other doesn’t, it is highly unlikely that you will be able to reach an agreement.
- Anything that is agreed in mediation is not legally binding. Whilst the mediator will often write up what is agreed in a ‘Memorandum of Agreement’, if you want this to bind the two of you in the future, you would still need to submit it to the court for a judge’s approval.
- One party may not be fully truthful about their circumstances which can lead to frustration of the other party or potentially an agreement based on insufficient information. A mediator does not have any legal power to delve into that person’s finances to produce information, whereas in court, that person could be asked to produce further evidence or testify.
- Many deem mediation as inappropriate in circumstances where domestic abuse has been a factor as it could pose as another opportunity for the victim to be manipulated.
Do you have to go?
In most circumstances, you must attend a Mediation Information and Assessment Meeting (MIAM) before you can issue court proceedings relating to finances or children. There are limited circumstances where you may be exempt from attending a MIAM including but not limited to:
- where there has been any form of domestic violence between you and your ex-partner and it has been reported and logged by the police, courts, health professionals or specialised agency;
- where the situation is a matter of urgency, i.e. a risk of harm to the child’s safety; and
- where you have already attended mediation with your ex-partner in the last 4 months and it has been unsuccessful.
A MIAM is ultimately a ‘screening process’ to assess whether you and your circumstances are suitable for mediation. The mediator will often introduce themselves and ask you about what difficulties you are facing with your partner. Most providers offer a fixed fee MIAM service which typically costs around £100.
After your MIAM, the other person will be invited to attend a separate MIAM to ascertain their views and whether they would be willing to engage in mediation moving forward.
If you are both happy to start the process of mediation, the first meeting will then be scheduled for you both to attend.
What if you can’t agree?
If one of you decides that mediation isn’t working for you, or refuses to attend mediation at all, you are not bound to that route.
Equally, if the mediator decides that mediation is unworkable for the two of you, then they will provide you with a signed form which will enable you to make an application to the court in relation to your issues.
In most cases, the fact that you have attempted mediation in the first instance looks positive to a Judge, even if it was not ultimately successful.
Where do you start?
Recognising that no matter how difficult the situation is now, it is not going to get any better unless the differences between you are resolved is a great frame of mind to be in when considering mediation.
The Family Mediation Council has published a list of mediators for you to look through here – https://www.familymediationcouncil.org.uk/find-local-mediator/. You can use their search feature to look for someone who is local to you, or you can filter by their specialisms such as those mediators who can also work with children as well as you, or those providers who will assess you for legal aid and determine whether you are eligible.
We work with a number of mediators local to our offices and would be more than happy to recommend these to you upon request.