Family mediation is a voluntary process that takes place during or after separation, in which couples discuss and resolve matters that follow the breakdown of their relationship. These matters often include, but are not limited to, divorce, finances, housing and child arrangements.
The purpose of mediation is to reach a resolution amicably and respectfully through an open dialogue. Family mediation is a popular form of Alternative Dispute Resolution (ADR) that avoids a potentially costly and contentious litigation process.
Family mediators are predominantly family lawyers with extensive experience in resolving disputes; they are specialists and focussed on working with families to reach outcomes and move forward in their lives.
Family mediators do not take sides.
Discussions that take place in mediation are primarily confidential (see below for exceptions) and cannot be used in any subsequent court proceedings. This allows all avenues to be explored fully in conversation and that no one feels anything could be ‘used against’ them in the future.
Before the family mediation process can commence, making sure this is a suitable method of ADR for the parties is imperative. Typically a mediator will meet, or at least speak to, both parties separately before having a first session all together. This allows the mediator to understand what page both parties are on and what is important to them, alongside assessing whether family mediation is appropriate in each case. For example, one consideration is whether they are comfortable enough with each other that discussions and negotiations face-to face are appropriate.
Family Mediation Process
At the commencement of the first mediation session, both parties and the mediator will sign the ‘Mediation Agreement’. In summary, this is an agreement setting out that the parties are engaging in the process voluntarily, which elements are confidential, that it is for the parties to make decisions and that the mediator will facilitate the sessions in an even-handed way.
During mediation of financial matters, financial disclosure takes place which requires both parties to disclose to the other their financial picture. This is an ‘open’ – non-confidential – aspect to mediation. All other aspects, relating to proposals and discussions surrounding financial settlement, for example, are confidential.
The mediator will lead the parties in their discussions and they will converse face-to-face with the mediator’s guidance. The mediator encourages a dialogue, explores options and allows them to reach their own agreement about how best to resolve matters.
Mediation sessions tend to be 2 hours each and normally require 2–4 sessions to resolve matters.
Either party can pull out of the family mediation process at any time.
What happens at family mediation?
So, you and your partner have decided to resolve matters through mediation, but what actually happens when you get there?
Every mediator has their own approach and style and you will most often find that mediators are guided by your needs and objectives.
Family mediation is not about turning up and a mediator telling you what to do – after the initial session (which is normally an intake session, discussing the process and parameters with you), you and your partner need to undertake work before the subsequent sessions. For example, when mediating financial matters you will be expected to have prepared disclosure ahead of the session, setting out your financial position and income needs. The objective is for everything to be transparent and laid out on the table. It is only once you know precisely what is in the pot and see the full picture, that you can be in a position to effectively discuss how finances are to be separated and the next steps.
Mediation of children matters is similar. You have to be open and honest about what you want the outcome to be and what your capabilities and limitations are. Once this is known only then can options be explored and progress made.
The mediator is a neutral third party; they are primarily led by you, your ideas and needs. They are able to give you guidance on the law and what a court might do, but will not give legal advice. Fundamentally, you are in charge of the process. You may go in with the intention of discussing finances but a recent issue has arisen in relation to child arrangements that needs to be addressed – the mediator will be guided by your and your family’s needs.
Be comfortable. It is crucial that you feel able to voice your thoughts and opinions. Remember that, save for financial disclosure, the discussions and options explored in mediation are confidential; it cannot be used against you down the line if mediation fails.
You can have solicitors in the background. Often a mediator will encourage you to take advice on matters discussed. Legal terminology is a foreign language to most people, and whilst the mediator is usually a highly experiences, specialist family solicitors, it is important you understand what is being discussed. Educating yourself and seeking advice is all part of the process and the mediator will encourage you to obtain advice and support as necessary. A final agreement reached will affect you and your family; it is vital that you are making informed decisions.
Essentially, the mediator will guide you through the process, allowing you both to speak and explore all options available. Understandably, the process can appear daunting, but family mediation is an every-growing method of alternative dispute resolution that is highly effective when parties are open and informed.
Can you take a solicitor to mediation?
Solicitors are not required for mediation.
Often couples engage in mediation in concurrence with family proceedings. For example, they may engage a solicitor to assist with the paperwork for divorce matters and preparing financial disclosure that will be discussed in mediation. It is common for parties to have their own solicitor who advises them in between mediation sessions and people often find it helpful to have taken initial legal advice prior to starting mediation, so that they have an understanding of their legal position before embarking on negotiations. A solicitor’s role, in the background of mediation, can be helpful in assisting with questions and guidance that might be sought. A mediator may suggest they get advice on a particular point, in the event that their understanding of their own legal position is incorrect.
The mediator is not either party’s solicitor. They are impartial and cannot provide legal advice. However, the mediator will inform them on what the law says and legal mechanisms available.
Are agreements made in mediation legally binding?
An agreement reached in mediation is not legally binding on its own until an application to court has been made converting this agreement into a Consent Order.
The mediator will be able to advise on how to go about obtaining a Consent Order once an agreement is reached. Generally one or both parties will need to instruct a solicitor to assist them with this.
Does family mediation sound right for you?
If you would like to explore whether mediation is an option for you or you would like further information about family mediation, please contact Priya Palanivel, a Partner at Rayden Solicitors, who is an experienced family law solicitor and mediator, on email@example.com.
Priya is available to conduct mediation via video conference call facilities during current COVID-19 restrictions.