Mediation is an increasingly popular way for separating couples to agree the arrangements they need to make, whether that’s in relation to their finances, children, divorce, or other practical issues.
Here we answer some of the questions we are often asked about mediation.
What is family mediation?
Family mediation is a process through which separating couples work to reach an agreement on issues arising from their separation, assisted by a dedicated, professionally trained, mediator. The mediator facilitates discussion to help the parties find a solution which works for them.
Using a specialist family lawyer as a mediator ensures that you have a mediator who is familiar and up to date with the legal issues that are likely to arise, can ensure nothing is overlooked, and is well-placed to help you reality-test ideas and suggest practical steps towards reaching agreement without the cost and stress of going to court.
When is mediation suitable?
For mediation to have the best chance of success, both parties should be committed to the process and open to compromise. Mediation is suitable for cases at all levels of complexity, and whether you need to resolve a wide range of issues arising from separation or a single question, such as which school a child should attend.
Mediation may be considered unsuitable in cases where there has been domestic abuse. The mediator will discuss any concerns about the process with each party individually before starting mediation, and assess whether mediation is appropriate.
How does mediation work in practice, and do I need a solicitor as well?
Mediation takes place in meetings between the mediator, you, and your former partner. Sessions tend to last between one and two hours, and you should generally expect to need four to five sessions, though this will vary depending on the nature and extent of the issues
If you or your former partner do not want to be in a room together the mediator can ‘shuttle’ between you, but this can be less effective and take more time. In some cases, we may suggest involving a second mediator, sometimes with a therapeutic background, to assist the process.
Mediators are not permitted to give legal advice; their role is to facilitate discussion. For that reason, many people who mediate choose to have a solicitor providing legal advice in parallel to the mediation process. The solicitor will be able to debrief with you following mediation sessions and help you prepare for the next meeting, for example by reviewing financial disclosure, or helping to formulate potential settlement proposals.
If an agreement is reached, the mediator will draw up a Memorandum of Understanding, setting out the terms agreed. These terms will not be binding unless you and your former partner both subsequently choose to commit to it. We recommend taking solicitors’ advice before confirming agreement. The solicitors will also be responsible for the process of turning the agreement into a formal court order.
What are some of the benefits of mediation?
- Mediation can be the quickest, cheapest and least stressful way of resolving issues arising from separation
- In mediation you work together to choose the solution best suited to your family, meaning it is likely to work better in practice than an outcome imposed on you by a court
- Mediation can reduce conflict and improve communication. This can be particularly useful where there are children and you will need to continue to communicate with each other
- Mediation is likely to be more productive than discussing matters directly with your former partner. A mediator will ensure discussions stay focused, reducing the prospects of argument and increasing the likelihood of making progress, and their presence should help you both stay calm
- You can return to the same mediator if arrangements need to be reviewed in the future, e.g. to vary maintenance or change arrangements for children
- A solution will not be imposed against your wishes, rather you and your former partner are supported in finding a solution which works for you both
- Privacy is an important factor for some clients, with the family courts becoming increasingly open to the press and public. Mediation is completely private.
What are some of the drawbacks of mediation?
- It can be daunting sitting in a room with your former partner and discussing matters face-to-face. You both need to be emotionally ready for that
- Mediation does not guarantee a solution. If mediation does not succeed, you will need to use another approach to resolve the remaining disputes.
What if mediation doesn’t produce a solution?
Mediation has a high success rate, but there are cases in which it isn’t possible to reach a solution. In those cases, a different method of dispute resolution will need to be used. The two options which guarantee a resolution are court proceedings and arbitration.