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Mediation – true or false?

Posted: 18/01/2022

Following on from our article yesterday in recognition of Family Mediation Week, which gave an overview of the mediation process and highlighted some of its advantages, today’s article explores the mediation process further.

Mediation is used to try to get us to reconcile

If you would like to explore whether a reconciliation is possible, a therapist or counsellor would be the most appropriate third party to assist. This is not the role of a mediator.

The role of your mediator, whom you can select together by agreement, is to help you discuss your separation and the legal process. Your mediator will be an independent, specially trained third party, who will facilitate discussions between you, and encourage you to reach an agreement in respect of issues that may arise as a result of your separation. Often, the logistics of the divorce process (for those who are married) will be discussed and agreed, as well as financial matters and arrangements for the children.

The mediator will impose a decision on us if we cannot reach an agreement

Your mediator cannot impose a final decision upon you; only a judge or an arbitrator can do this.

If you and your former partner are unable to reach an agreement in mediation (it often takes three to five sessions for an agreement to be reached), your mediator will discuss alternative options with you, such as collaborative law, discussions through solicitors, and arbitration.  

If you do reach an agreement in relation to financial matters in mediation, you should ensure that its terms are legally binding, by having a ‘consent order’ drawn up. The consent order will set out the terms of your agreement, and will be submitted to the court for approval. There is usually no need for anyone to attend court for this. If the judge views the agreement as fair, the consent order will be stamped with the court seal, and it takes immediate effect, although it does not become enforceable until the divorce proceedings have been concluded, with the pronouncement of the decree absolute.

It is also possible to submit a consent order to the court if you reach a mediated agreement in respect of the arrangements for the children.

The mediator will not provide specific legal advice to us individually

Your mediator is independent and cannot therefore provide either of you with individual legal advice, although they may provide you with general advice about the legal processes and the orders that could be available in your case.

Often, those engaging in the mediation process will also have a family law solicitor advising them throughout the process. It is not uncommon for legal advice to be taken before and during the mediation process. Currently, if an agreement is reached, the parties’ solicitors will draw up the ‘consent order’, which records the terms of the agreement, and is sent to the court for the judge’s approval, before becoming legally binding.

If your mediator is trained to offer ‘hybrid’ mediation, they can invite your respective lawyers and/or other experts, such as tax experts, valuers, independent financial advisors, and independent social workers, into the process, to assist with complex issues, and to enable you to take advice from your solicitor then and there.  

Mediation is voluntary

Mediation is a voluntary process, although in most cases you will be required to attend a Mediation Information and Assessment Meeting (MIAM) before making a court application in respect of financial matters and children matters. However, this does not then compel you to attend joint mediation sessions.

The purpose of the MIAM is to give you an opportunity to explain your situation and any concerns to the mediator. Your mediator will explain the mediation process to you, and provide you with information about other ways in which you could seek to resolve matters without having to attend court.

There are a number of exemptions to the requirement to attend a MIAM, for example, where there has been domestic abuse and/or where the application is urgent.

Whilst mediation is an entirely voluntary process, parties are encouraged to engage in it, given the potential benefits that were highlighted in our article yesterday.

Mediation is for adults only

Some mediators are specifically trained to meet with children in mediation sessions. ‘Child inclusive mediation’ gives a child an opportunity to meet and speak with a mediator, to ensure that their voice is heard.

The child meets with the mediator, separately from their parents, and has the opportunity to express their views in a neutral environment with a supportive, independent mediator.

The parents will ultimately make the decision as to what the arrangements for the child should be, providing they can agree on this, but child inclusive mediation ensures that the child’s wishes, feelings, and thoughts are considered.

Mediation is suitable in all cases

False, but…
Mediation is not suitable in all cases, and there is a list of circumstances in which the parties would not be expected to engage in mediation, or even a MIAM, such as where one of the parties is precluded from having contact with the other (because of bail conditions or a non-molestation order, for example).

Subject to those specific exemptions, however, mediation is suitable in the majority of cases, even those involving high conflict.  Your mediator will have an initial discussion with you both individually, to find out what you wish to achieve from the process, and to ascertain any concerns that you might have. Your mediator can then consider and address these. If there is a high level of conflict, for example, it might be more appropriate for the mediation sessions to take place via video calls, or for you and your former partner to be in separate rooms during the process. 

Mediation is never going to work in my case

You won’t know until you try
According to a survey carried out by the Family Medication Council, mediation is successful in over 70% of cases.

It may seem that you and your former partner cannot agree about anything, and/or that your partner is being entirely unreasonable, but often it can help to have an independent third party facilitate your discussions, so that a focussed approach can be taken.

Mediation is not successful in all cases, but even in those cases where an agreement cannot be reached, mediation is often a useful starting point to narrow the issues between the parties.

We have a number of trained mediators at Penningtons Manches Cooper, and will be able to offer hybrid mediation from next week (Monday 24 January). Please see our website for further details, and contact us should you wish to have a no obligation discussion with one of our family law specialists.

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