For anyone involved in separation, divorce or the dissolution of a civil partnership, mediation is increasingly popular for resolving family disputes, whether about children or family finances. Mediation provides many benefits for families, helping them to reach agreement about what should happen with greater cooperation and less animosity than going to court.
Family mediation has a long history, starting with the liberalisation of divorce procedures under the 1969 Divorce Reform Act following which the first dedicated out-of-court mediation service was set up in 1977 (Westcott, J. (2004). Family Mediation: past, present and future. Bristol: Jordan (Family Law)). By the 1990s, family mediation had developed as a mainstream activity, and it is now 20 years since it first became a formal part of the family dispute process for legally aided cases.
More recently, mediation has been actively encouraged by the government as part of a wider drive to assist families by diverting cases away from the courts and employing faster, more cost-efficient dispute resolution processes. Since 2011, there has been an expectation that all parties to divorce proceedings, whether represented by lawyers or not, should attend a mediation information assessment meeting (MIAM) before issuing a financial application at court.
Meanwhile, following the Children and Families Act 2014, it is unusual for private law Children Act cases to proceed to court unless the parties have considered mediation, although a limited number of exceptions apply including cases in which there are allegations of abuse.
The mediation process is confidential, entirely voluntary and freely negotiated, enabling you and your partner to reach joint decisions without the courts having to make them for you. It, therefore, provides families with much greater control over the outcome and diminishes the stress involved while avoiding the inevitable hostility that can arise in protracted court proceedings.
Ownership of the process is central: you make the decisions rather than a court doing so on your behalf, allowing you to keep control over your own future and that of your family. Critically, mediation is also quicker and cheaper than litigation: in the majority of cases, you get results much faster than going to court and significantly reduce the costs involved. According to government statistics, the average mediated resolution is achieved in about a quarter of the time taken for the average court separation with a similar saving in costs.
Mediation allows for open communication so that you can negotiate with your partner about all the necessary arrangements for your future. The sessions take place in a neutral venue with a mediator being present throughout, whose role is to facilitate the discussions and guide the parties towards a settlement.
After an initial assessment has taken place, the first mediation session typically sets up a structure for the process, starting with the parties signing an agreement to mediate, which sets out the agreed terms and principles of mediation. The parties agree with the mediator on an agenda and the mediator will help determine what the parties seek to accomplish and establish common ground between them at the outset.
Thereafter, mediation is conducted through a series of sessions working towards reaching an agreed outcome. Mediators do not dictate the terms of settlement. Instead, they help you to evaluate different options so that you reach your own agreements including arrangements for children, finances and property. In between sessions, the parties are encouraged to seek advice from their solicitors to ensure that they have all the relevant legal advice required to be able to conclude an agreement. After the sessions, the mediator will provide a note to summarise the key points discussed and agreed together with agreements for the next session to enable the parties to discuss the process with their solicitors and to prepare for the next session.
Mediation has scope to be creative, especially when discussing arrangements for children regarding where the children will live, and when they spend time with their parents. The flexibility of the process enables discussion about different options and for arrangements to be negotiated, even in situations of high conflict. Thoughtful discussion and compromise can take account of both parties’ needs and especially those of the children.
When negotiating a financial agreement through mediation, full disclosure is essential as it is within the court process. The mediator will require both parties to provide complete financial information in relation to all assets, liabilities and income so that a clear picture of the assets can be established to facilitate a discussion of how the finances should be arranged after separation. A schedule of all assets and liabilities, together with income and expenditure, will be drawn up by the mediator, providing you with a fully informed position from which to negotiate an agreed outcome.