Mediation – what to expect

Mediation appears once again to be on the increase.

Previously it was a requirement for a person applying for a financial remedy order or a child arrangement order to attend a Mediation Information and Assessment Meeting (MIAM) before lodging their application. There were exemptions to this rule such as urgency and being a victim of domestic abuse etc. The position on this has somewhat changed recently in that if people do not reasonably engage in mediation before commencing the court process, the courts can impose costs sanctions on those who refuse, without satisfactory exemption.

Mediation is used by people who are married, civil partners or parties who cohabit in order to negotiate finances or arrangements for their children. Mediation is not just limited to couples or separating couples as it can also be utilised by other family members, such as grandparents or even the child (dependent on the child’s level of maturity).

Roles

You do not need to seek independent legal advice in order to undertake mediation but it is helpful to ensure the best possible outcome. A legal professional can advise on the strengths and weaknesses of a matter, identify potential issues and assist with the structure of any agreement.

The mediator acts as an impartial third party to help the parties discuss their issues and steer the negotiation process, by chairing, moderating and reviewing evidence. But it should be known that a mediator is not a decision maker so cannot impose a binding conclusion to mediation.

The couple or family members must be open and honest during the process to allow them to fully benefit from the process.  There must always be full and frank disclosure. Mediation allows the couple/ family members to remain in full control as they negotiate a mutually beneficial agreement.

Preliminary Steps

A legal professional can refer a client to mediation or the client can approach a mediator directly. Then a preliminary meeting will take place to:

• Obtain the couple or family members contact details
• Invite the other person/ family member participants to a preliminary meeting
• Check that all parties are entering freely into mediation
• Give the participants detailed forms to complete

The mediator will assess if mediation is appropriate for the couple/ family members or whether their respective desired outcomes are too far apart or simply unobtainable. If mediation can progress the mediator will draw up an agreement between the mediator and the couple/ family member participants so they have rules to abide by while mediating. It will cover aspects such as confidentiality, complaints and fees.

The Process

1. Opening phase: used to build a rapport and set out rules
2. Identifying issues in order to set an agenda
3. Information and document gathering: such as financial disclosure or medical/ school reports
4. Negotiation: to include checking if potential agreements will be functional in every- day- life, identifying settlement options or jointly instructing experts to gather further evidence
5. Concluding mediation: this happens if the couple/ family members reach an agreement, if mediation breaks down as they cannot agree, they take a break or the mediator decides it is not appropriate for the participants to continue mediation.

After Mediation

If the participants reach an agreement or simply narrow the points in dispute the mediator can prepare a Without Prejudice Memorandum of Understanding to document what has been agreed and/ or what remains in dispute. If the couple or family members wish for their agreement to be legally binding the next step would be to instruct a lawyer to prepare a consent order and lodge this with the court for approval and sealing.

Pros and Cons

If you are looking to engage in mediation, please contact our Family Law team who can assist you through this process. We have a list of preferred mediators that we work with so we can ensure that the mediator you chose is the right fit for you in terms of personality, location, method of working etc.

We can meet with you before you start mediation to give you some general advice about possible outcomes and to manage your expectations. We can also meet with you during the mediation process to discuss any proposals that are to be made or have been made already.

If you are successful in reaching an agreement in mediation, then we can also assist you in converting that agreement into a legally binding document.