Throughout this year’s Good Divorce Week, we are focusing on some of the options available to families outside of the court system. Mediation forms an important part of this, if appropriate, and can be an effective way for separated couples to resolve their issues, particularly in relation to arrangements for their children.
It is important to note that before issuing a case to Court, it is now compulsory for parties to attend a Mediation Information and Assessment Meeting (MIAM), unless a certain exception applies. This encouragement by the Court shows the value that mediation can have in the correct circumstances.
What is mediation?
Mediation is a process in which an independent mediator works with a couple to help them reach a mutual agreement. It is a voluntary process, meaning that both parties need to commit to engaging in the process. It is open to either party to leave mediation at any stage.
You can contact a mediator direct, or alternatively your solicitor can make the referral to mediation for you. We would suggest that you discuss the option of family mediation with your solicitor at an early stage as they will be able to help you to understand whether it is the right option for you.
Mediation is a confidential process and conducted on a without prejudice basis so any agreement reached is not binding on the parties, allowing them to obtain independent advice from their respective solicitors as to the proposals and their positions. It cannot be relied upon in court should mediation breakdown.
It is important for parties thinking about mediation to understand that it is not an advice service. The mediator will remain impartial and cannot advise the parties. Therefore, each party should take their own independent advice so that they can best understand their position.
What is the mediation process?
Generally, mediation can be broken down into a few main steps.
- The couple chooses to mediate and a mediator is approached. Your solicitor will be able to make a referral to a mediator, or clients can approach them direct.
- Each party will attend a separate intake session, known as a Mediation Information and Assessment Meeting at which the process and costs are discussed and the mediator will assess whether mediation is suitable for the parties. Joint intake sessions can take place where there is a high degree of agreement between the parties.
- If the parties decide that mediation is for them, and the mediator agrees it is suitable, the first joint session will be arranged and an agenda set.
- If the mediation relates to financial matters on separation or divorce, the parties will be provided with a list of documents (financial disclosure) to gather ahead of the first session.
- There will typically be between 2 and 4 joint sessions with a mediator, depending on the issues involved, and time will be allowed between each session for the parties to further consider the issues and options discussed and seek their own legal advice.
- Sessions are usually up to 1 ½ hours in duration
- It is important to remember that the mediator must remain objective and cannot provide advice to either party. They are there to facilitate discussions and assist in reaching an agreement. They can provide both parties with information about the legal framework but must not give advice.
- Each party will have separate interests to protect and this should be considered with separate family law solicitors.
- Throughout the process, the mediator will provide written summaries as to what has been discussed or agreed. Each session should narrow the issues in some way.
- If progress is not being made, mediation might not be suitable and the couple should speak to their solicitors about other options available to them.
- If agreement can be reached, the mediator will prepare a summary of what has been agreed (and an open financial summary, if the mediation has dealt with finances on divorce or separation) and copies will be sent to the parties’ solicitors once approved and consent has been given to release the documents.
- The parties will have discussed in mediation whose solicitor will be responsible for preparing the formal agreement for signature by both parties and how the costs will be met.
- The mediation process has then concluded, unless the parties need to return at a later date to narrow any further issues or if the agreement subsequently breaks down and an application to court is being considered.
What is the cost of mediation?
Mediation can be a useful tool for many separating couples, although it is not appropriate or suitable in a lot of cases, for example those involving issues of domestic abuse and coercive and controlling behaviour. In addition, whilst the overall cost of mediation can be comparatively cheaper than other routes, as the mediators charges are usually met equally by the parties, they will still incur costs for their separate legal advice. The overall cost should therefore be considered before embarking what could potentially be a lengthy process, with no guarantee of an agreement at the end.
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