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Mediation: preserving the positives

Posted: 17/01/2023

Even the most amicable of separations can turn sour despite the couple’s best intentions of maintaining a positive relationship with one another. The reasons for the relationship going south are often wide ranging and highly personal to the couple going through the separation. In this article, we aim to explore the ways in which mediation can preserve the positives from your relationship for you and your family.

Mediation keeps the communication channels open between the couple

Joint mediation sessions bring the couple together to talk in a safe place where they might not otherwise have the opportunity to do so following the breakdown of the relationship, particularly if living separately. The traditional model for mediation is that after the couple have each met with their mediator individually, their joint sessions are arranged. There are usually three to five joint sessions, although this can vary depending on the complexity of the issues which need to be resolved. These joint sessions can be arranged as frequently or as infrequently as the couple like. There are other models available, including shuttle mediation and hybrid mediation which can be particularly helpful in high conflict cases.

The mediator is impartial to both the parties, and so they do not take sides. Their role is to facilitate the discussion between the couple to help them come to an agreement which works for them and their family. To assist with this, the mediator encourages the couple to discuss their options together. Where there is a ‘sticking point’ in the discussions, the mediator will help the couple understand the root of any disagreement, which in turn helps them to better understand one another and to come up with ways of overcoming any obstacles to reaching their agreement. The mediator will actively listen to the discussions between the couple and will help them see overlap in their positions which the couple themselves may have missed.

Mediation provides a safe space for couples to discuss their issues as it is private and confidential and so encourages the couple to communicate openly and honestly with one another. This often results in the couple making suggestions regarding their settlement that they might not have made through their lawyer or if they were in the court process. The couple can come up with creative solutions to resolving their issues that work for them and their family.

The couple are not bound to anything they may have said or agreed in mediation. This gives them the opportunity to take legal advice on any agreement reached in mediation so they can have peace of mind that their agreement is fair. When the couple have made a decision together in mediation, it is much more likely that they will stick to their agreement which in turn means there is less scope for disagreement in the future.

Where there are future disagreements, the couple often feel empowered by the fact they have previously been able to resolve disputes between them. This gives them the confidence that they can work together again towards a solution, whether by sitting down and discussing directly, or returning to mediation.

Mediation can be a quicker route to an agreement and so to the couple moving forwards with their lives

The couple can take control of the pace at which they move through mediation to meet their individual needs and issues. In many cases, family issues are resolved much more quickly through mediation than they would be if the couple were engaged in other forms of dispute resolution. By reaching an overall agreement quicker, couples are able to move forwards and to begin the healing process after what has likely been a difficult and emotional time.

Mediation can preserve your financial resources, leaving more in the pot available to share

Mediation can be one of the most cost-effective ways of resolving family issues. The cost of the mediator is usually shared between the parties equally. It is common for a couple to continue to take independent legal advice in the background to mediation, and indeed we actively encourage this. Even so, the involvement of the mediator often considerably reduces the costs the couple would incur if they were to negotiate at arm’s length through their lawyer, or if they were to go to court. As mediation can move more swiftly than other methods of dispute resolution, the couple also benefit from savings money in that respect, as delays often lead to additional costs.

As mediation is more cost effective, it means that the couple preserve more of their asset pool. This in turn means that they have more in the ‘pot’ to divide between them, whatever their overall agreement looks like. The savings that can be made via mediation over the court process can be significant and make a big difference to the couple and their financial circumstances at the end of their separation.

The couple maintains control of the outcome in mediation

Control is an important and empowering feeling for both parties at a time in their life when things may be feeling very out of control. Mediation is therefore a powerful tool for the couple, as they are in charge of the process and ultimately any agreement which is reached.

As the mediator will not impose a decision on the couple, they are in control of the options which are discussed and explored, the speed at which an agreement is reached and the task of reaching an agreement itself.

Although there are many opportunities to reach an agreement in the background to the court process, ultimately, if that is not possible, a judge will make a decision which will be binding on the couple, often something which neither party wants. A judgment at a final hearing completely removes the couple’s decision-making power and their control over the outcome. An agreement between the parties is always better than a court-imposed judgment, regardless of how that agreement has been reached.

Mediation can minimise the impact of separation on children

Where a child is concerned, most individuals cite their child as their number one priority in a separation and the impact of separation on their child is often their biggest worry. Mediation is a positive model for a child of separated families. It demonstrates the couple are able to take control of the situation, work together for the benefit of their child and make decisions to secure the family’s future.

Mediation also offers a forum for the child’s voice to be heard in the process. There are some mediators who are trained as child-inclusive mediators which means that they are specially trained to meet with the children individually, away from the parents, to understand their wishes and feelings. Those wishes and feelings are then fed back to the parents in their joint mediation sessions, with the intention of helping the couple come to decisions that are child-focussed.

Child-inclusive mediation gives the child the opportunity to have their voice heard in the process which helps them feel more secure and validated in the process. Child-inclusive mediation should be considered in all cases involving children over 10 but younger children can also be involved, if appropriate. As with everything in mediation this is voluntary and both parents and the children themselves must consent to it before a child inclusive mediation can take place.

Mediation encourages the couple to be future-focussed

At the first joint mediation session, the mediator will often discuss an agenda for the meetings with the couple. Some couples wish to spend some time discussing the history to the relationship and having their experiences of the relationship and separation heard and validated by the other party. However, much of the discussions in mediation will be about acknowledging the past and looking at how both parties can move forwards with their lives. By focussing on the future, and what that looks like for the couple and their child or children, mediation often calms the situation and helps to preserve the couple’s relationship beyond separation.

As a method of resolving relationship and family issues, mediation offers a number of advantages which other methods, such as the court process, cannot. At Penningtons Manches Cooper, we have a number of trained mediators who will be able to assist you. If you would like any further information, please contact our family team.

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Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority under number 419867.

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