What is mediation?
Mediation is a process by which an independent qualified mediator works with a couple to help them come to a mutual agreement.
How does it work?
In mediation a trained mediator speaks to you and your former partner separately at first, then aims to get everyone round a table to talk about what arrangements will be made for the future. It can be used to work out financial matters or children’s schedules and any other practical decisions that need to be addressed. It is a process that focuses very much on the future, rather than the past.
Mediation is a voluntary, confidential process. In the meetings the mediator will guide you through discussions that help you both to explain what you want to happen and eventually to reach an agreement. If you don’t manage to agree everything, you can’t refer in court to discussions that you’ve had in mediation but financial information can be used in court.
The main features of family mediation are:
Who does it suit?
The mediation process will not be suitable in every case. Mediation works best for:
The parties are able to take the mediation as quickly or as slowly as suits them. Some people feel that they want to talk through issues together over a number of sessions whereas others would prefer to deal with the process expeditiously. The parties will have the chance to discuss pacing with the mediator and work out appropriately the number of sessions they need to have over what timeframe. Mediation is often seen as being much less acrimonious than litigation. The parties will work together to come up with suggestions and solutions with the assistance of a mediator. They will present information in an open and transparent way that they are both able to fully understand. The mediator will cross check the disclosure to see if there are any gaps. It shouldn’t be assumed that disclosure is less rigorous because the parties are attending mediation. If anything, mediation facilitates the possibility of seeking as much or as little disclosure as the parties want, subject to receiving sufficient understanding of their finances.
Mediation is often cheaper than other process options. The mediator’s hourly rate is essentially divided by two, although often the financially stronger party will pay for the sessions. There are, however, costs outside of the mediation process both for the mediator’s time in considering disclosure, preparing asset schedules and preparing net-effect schedules, and for the solicitors representing the parties outside of the process that need to be factored in. With effect from 3 November 2014 the Legal Aid Agency will fund one single mediation session following a mediation information and assessment meeting (MIAM) where one of the parties is eligible for legal aid (and as previously for the legally aided party only thereafter if there are further mediation sessions).
While you are going through mediation, it is sensible to take some legal advice. This can be the best balance between keeping costs low and achieving a settlement that works for you.
An agreement reached in mediation is not legally binding by itself but can be turned into a court order to become binding and enforceable if that is what both of you agree should happen. It is usual to do this in financial matters.
Is it for me?
Mediation is not right for everyone. However, for most people, even where conflict levels are high, it can be a very effective process for sorting out disagreements or narrowing the tricky issues. It can also help with communication and understanding, going forward.
Mediation is usually much quicker and cheaper than using solicitors for a court application. Legal aid is still available for family mediation, subject to a means test, and if you qualify you will be able to go through mediation for free with a legal aid provider.
Please contact us if you would like to discuss family mediation or make a referral.