For separating couples looking for an alternative to court proceedings, mediation can be hugely helpful in finding resolutions to the most contentious issues. This typically includes thorny questions around the division of assets and finances such as property, savings, pensions and debts. It also covers highly emotive child related issues such as maintenance payments, custody, residency and contact arrangements.
A neutral, professionally trained family mediator can aid communication and negotiations between the two parties and facilitate the process. That said, separation and divorce is a journey and most separating couples won’t be mentally ready to make an appointment with a mediator until some key questions have been answered and potential suspicions have been overcome. Here’s a good way to address each query.
1. When is the right time to try family mediation?
You can contact a family mediator as soon as there is serious disagreement about an important family decision to be taken, which shows signs of getting worse. It is a good idea to use this service at an early stage in the process, even if you very much doubt that it will make a difference. You have nothing to lose but everything to gain.
It’s also worth pointing out that a judge may refuse to hear a case unless the option of mediation has at least been considered beforehand. It is now compulsory for any court proceedings to be referred to family mediation first, and you should will be expected to attend at least one session with a mediator. Certain exemptions apply for special situations.
2. How does family mediation work in practice?
A family mediator can be contacted by either ex-partner or via your or your ex’s solicitor, and an initial meeting arranged. This first Mediation Information and Assessment Meeting (MIAM), you will be discussing the nature of the issues to be resolved and to find out if mediation is an appropriate approach to achieve this.
If you choose not to proceed, the mediator will provide a certificate of attendance to the court. If you choose to stick with the mediation process, further meetings will be scheduled where your issues can be tackled in sequence. Additional legal advice and guidance from your solicitor can be sought at any time.
Once agreement has been reached, the mediator will produce a summary that you and your ex can both discuss separately with your respective solicitors before it is turned into a legally binding document.
3. What are the main benefits of mediation?
When it works, mediation can be a lot less stressful and less confrontational than formal court proceedings, thereby reducing the change of the deteriorating relationship between you and your ex partner becoming even more strained. The mediation process is also considerably cheaper and quicker than going to court.
Mediation gives both parties greater control over how issues are tackled and resolved to your mutual satisfaction. A judge, on the other hand, will make a decision that you have to abide by, whether you like it or not.
Finally, for any children involved in the family breakdown, the process of mediation can be gentler, less damaging and upsetting than a gloves-off war between their parents. It also offers a greater chance of their voice being heard and their feelings being taken into consideration.
4. What if mediation is unsuccessful?
Most separating couples who start the mediation process find that it is possible to reach an agreement, but there are cases when mediation is simply not going to work. If this is your situation, don’t despair – it doesn’t mean that you have to initiate formal court proceedings just yet.
Collaborative law may be a better approach for you – your solicitor will advise. Under this process, both parties will have a collaboratively trained lawyer, while other team members may include an independent financial adviser, an accountant, family consultant or child specialist as needed. Alternatively, a family arbitrator may be appointed.
There are some circumstances where family mediation is clearly not appropriate. This includes cases of domestic violence or child abuse, bankruptcy for financial issues, or if you are unable to contact or locate your ex partner.
5. Do you have to instruct a solicitor as well as a mediator?
Working with a family mediator cannot take the place of instructing a solicitor. While a mediator may well also be a qualified family lawyer, in his capacity as a mediator he has to act in a neutral and impartial fashion to help both parties navigate the mediation process and assist in reaching a mutually acceptable agreement. The mediator is instructed by both parties.
That said, mediation tends to work best where each party is supported by their own solicitor, both prior and during the process. Most mediators advise separating couple to take legal advice outside of the mediation process to make sure that their individual interests are properly represented and safeguarded.