“Good Divorce Week” falls at the end of this month, a time when the legal profession aims to raise awareness of the alternatives to court proceedings. Our last post talked about collaborative law but this article intends to provide more information about another alternative to court by focussing on mediation. Both the Government and the Family Courts are committed to growing mediation as an alternative to contested court proceedings couples engaging but what is mediation and is it right for you?
What is Mediation?
Clients often approach us having heard of mediation but thinking that it might involve trying to reconcile with their partner or having to be on good terms with their ex. Mediation, however, is just a process designed to reduce the level of acrimony and bring about an agreement. It is also entirely voluntary, so if you feel uncomfortable at any time and for any reason, you are perfectly within your rights to stop the process at any stage.
As part of mediation, you and your ex will initially attend what is known as a MIAM (Mediation Information and Assessment Meeting). These meetings are attended separately, so you can each decide with the Mediator whether you want to proceed to mediation. The mediator will explain how mediation works and to assess whether your matter is suitable. If, at that stage, the mediator or the parties feel that mediation is unlikely to be an effective form of communication in the circumstances, the process will stop there, and you can be “signed off” by the mediator. That will then enable you to make an application to Court if appropriate. MIAMs are generally mandatory prior to making a court application but no one can force you to mediate.
In limited circumstances, you may be exempt from having to attend a MIAM, such as where there is evidence of domestic abuse, or where delaying may cause harm to children. However, it is important that mediation is not viewed as a mere hurdle to be overcome in order to be able to make a court application. Mediation can be an extremely effective method of negotiation, often leading to less bitterness, lower costs and better outcomes than applying to Court.
A mediator is not the same as a solicitor (although some mediators are also family solicitors): they are there to guide the discussion and help you and your ex find a mutually acceptable resolution to your matter. Even if the mediator is a solicitor, they are not permitted to give legal advice during the session; nonetheless, they are usually aware of what is or isn’t likely to be accepted as a legal agreement by the Court. The mediator’s true function is to help you focus on the future rather than re-hashing the past, and to help both parties take some of the emotion out of negotiation and find practical solutions to financial and/or children issues.
While straightforward mediation involves you and your ex sitting down together to discuss separation issues, it is important to know that mediation comes in all shapes and sizes, including:
- Shuttle mediation – this involves you and your ex sitting in separate rooms while the mediator “shuttles” between rooms. This can be particularly effective where the relationship has broken down to such an extent that you and your ex are not really on speaking terms and may feel intimidated, for example, in your ex’s presence.
- Hybrid mediation – this involves you and your ex being in the same room, but supported by your solicitor(s). The solicitor(s) will generally determine the agenda for the session, and back up the discussion with legal advice where it is required.
- Child-inclusive mediation – if your children are around 10 or older, you can arrange for child-inclusive mediation for the family. This means that the children are spoken to separately, and their views are given a voice as part of the mediation process, to help ascertain what is in their best interests.
What are the benefits of Mediation?
Mediation can prove to be a lot cheaper than its alternatives. Fees naturally vary between providers, but, in any event, most straightforward cases can expect resolution in around 2-4 sessions. Further, the Government currently has a scheme where offering £500 worth of free mediation vouchers for child related disputes.
Agreement via mediation is often much quicker and easier than applying to court as you are able to schedule sessions according to your availability and your own timetable.
Crucially, mediators do not make a decision for you, and nor is the arrangement you come to legally binding once you leave mediation: the mediator will draw up what is known as a Memorandum of Understanding that you can then present to a solicitor to have them advise on and if appropriate draw up a formal Consent Order to be approved by the Court. Approval of a Consent Order is a much quicker process than applying to court because you can’t reach an agreement with your ex.
Mediation is often overlooked as a solution to legal issues connected to a relationship breakdown often because individuals don’t really know what’s involved and how solicitors can support you through the process.