Today (17 January 2022) marks the start of Family Mediation week, which involves the family law profession raising awareness of mediation and the benefits that it can have. Over the years, I have found that clients are often confused about mediation, what it is and how it works. This blog seeks to address some of these questions as well as providing some useful resources.
What is mediation?
Mediation is a process by which parties meet with a trained and independent professional who helps them to resolve issues arising from the breakdown of a relationship – that includes financial issues and those surrounding the children. The mediator’s role is not to advise either party, but rather to assist in steering them to a compromised position. For many people, therefore, there is merit in also taking their own independent advice from a family lawyer, to ensure that they understand the parameters for settlement throughout the mediation process.
Are there different types of mediation?
Mediation has developed over recent years. Whereas previously, parties would almost always be sat in a room together with the mediator, increasing numbers of mediators offer a flexible approach to mediation, including:
- Shuttle mediation, where the parties are in separate rooms and the mediator moves between them;
- Hybrid mediation, where both parties have their lawyers present to support the process;
- Child inclusive mediation, where the children are involved in the process so that their voices can be heard.
The pandemic has also meant that mediators are comfortable with online sessions. This, and/or either hybrid or shuttle mediation means that increasingly, parties who might have felt vulnerable or the weaker party in a mediation environment may be able to successfully engage in the process.
What are the advantages of mediation?
There are many advantages to a successful mediation process, including:
- It will be quicker and cheaper than the court process;
- You retain control over the outcome, rather than handing it over to a Judge to make a decision that you may be unhappy with;
- Where you are reaching an agreement over the children, this will likely help you to co-parent the children moving forward, and open up communication between you;
- Legal Aid is available if you are financially eligible, and there is also presently a voucher scheme (non-means tested) which can offer £500 towards the cost of mediation.
Are there any disadvantages?
As with any process, there can be disadvantages:
- What you agree in mediation is without prejudice (i.e. cannot be discussed in any subsequent court process unless you both agree to this) and only becomes binding once a court has made an order formalising an agreement. This means that either party can renege on an agreement. In practice, I have only had this happen a small number of times in 20 years of practice;
- If it is unsuccessful, and you still end up having to engage the court process, it will be an extra layer of costs.
- As with any process involving negotiation, it requires compromise, and whilst ideally everyone would be able to reach an agreement by negotiation, in practice there will always be some cases that are unsuitable, due to the nature or approach of one (or both!) parties.
Do I have to mediate?
The whole premise of mediation is that it is a voluntary process, so no one can be forced to mediate. However, if you wish to issue court proceedings for either children or finances, you will need to undertake a Mediation Information and Assessment meeting (known as a MIAM), save in some circumstances such as where there has been domestic violence. This is an individual meeting which the mediator conducts with each party to assess suitability for mediation.
Following that meeting, if the mediator assesses it as suitable AND both parties agree to mediate, you will then arrange a joint meeting to move mediation forward. If either party does not wish to mediate, the mediator will sign the MIAM form, which then enables either party to issue an application at court.
What happens in mediation?
The Family Mediation Council recorded a mock mediation session last year which is excellent and gives a clear insight into what to expect from the process. This can be found here:
My colleague Katie Kilburn has also recorded a video on mediation:
How do I find a mediator?
If you have instructed a family lawyer, they will likely have preferred local mediators that they can direct you towards. You can however self refer, and you can search for a mediator on the Family Mediation Council website:
We have a number of mediators in house at Stowe Family Law and please contact us at enquiry@stowefamilylaw.co.uk
In summary, the lowdown on mediation:
I am a huge fan of mediation and the clear benefits it offers. I have always seen my role, wherever possible, to enable parties to leave a relationship with dignity and in a conciliatory fashion. Mediation is a process that supports that aim and is something I would encourage people to seriously consider.
# The lowdown on mediation