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Mediation: A Tale of Communication and Success

Penguin family under umbrella in the rain

Mediation – a word which was not part of day-to-day language a decade ago and a concept largely disregarded by lawyers as a “soft option”, has now become a central feature of family law.

The reason – it is fundamentally about communication between the people it concerns and affects, not the lawyers or Judges. Family law issues usually concern people who previously happily communicated – they had common goals and interests; and often still love the same people – their children.

They had the ability to ‘communicate’, so mutual understanding can still be retrieved and hopefully, revived, leading to far better outcomes in financial matters and longer lasting co-parenting relationships – vitally important for children caught in the middle of parental separation.

The system has recognised this and put mediation at the forefront of its drive towards non-Court Dispute Resolution (NCDR). This helps avoid the costs and stress of a Court system where, in default of some formal agreement/settlement, a decision will be imposed and forced on the parents/participants.

By contrast, the objective of mediation is to find where the interests of the participants/parents overlap and aim for tailored outcomes that work for the family, which they can all more contentedly, ‘live with’

The Court in recent months has gone further than ever before and made NCDR an obligation. Evidence must be shown that it has been properly considered and attempted, not just paid lip service.

Mediation will be the obvious choice in most cases because it is invariably the most cost effective and accessible of the NCDR options available. It is simple in structure and approach, does not require heavy-handed involvement of lawyers and complex processes but yet remains private and confidential. Mediation allows participants to reflect on their conversations and to seek independent advice before any provisional agreement is made legally binding.

An experienced mediator, or one that has a background in family law, will ensure that decisions reached fall within the Court’s expectations and are legally workable, without needing to attend Court and/or speak to a Judge.

The flexibility of mediation allows it to be structured to address complex backgrounds. Where the issues are complex, it can include professionals such as therapists and psychologists. If there are complex assets such as family businesses, pensions, and/or remuneration packages, it can involve accountants, actuaries and financial advisors. If there are complex legal issues, it can include lawyers as part of a “hybrid mediation” to advise and support the process, reducing the stop-start nature of instructing lawyers to argue in correspondence or in costly litigation. Where appropriate, the children can have a voice to ascertain their wishes and feelings in Child Inclusive Mediation.

Mediation has therefore been placed as the first step to take in resolving family law matters, as a way to preserve precious resources and to achieve more positive outcomes. Please contact mediators Che Meakins and Claire Howard to discuss mediation as an option for you.

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