Mediation is a way of resolving disputes when a couple divorce or separate. Mediation is only necessary where the couple cannot come to an agreement, either by themselves or with the help of a family law solicitor. Family mediation is often very useful in helping couples come to an agreement about the parenting of their children, who they will live with (residence) and when the other parent will see them (contact).
Divorce mediation is not compulsory, although if a couple are unable to agree about the split of their finances at or after divorce, or if they cannot agree to arrangements for their children they will be asked to attend a Family Mediation Information and Assessment Meeting to find out whether they might benefit from mediation.
With the changes coming this April to divorce law (see No Fault Divorce), it’s a good time to review the role of family mediation following the end of a relationship.
What is family mediation?
Family mediation must be conducted by a suitably trained and qualified family mediator. They will need to have completed a recognised training course and conducted a certain amount of family mediation sessions. They should be used to working alongside family solicitors and taking referrals from family law firms, to help their clients.
In Family Mediation the mediator can give information about law but cannot give any legal advice about what you can or should do. An agreement reached in a mediation session is not legally binding until you have had it drawn up as an official agreement by a family lawyer.
How does the mediation process work?
Family mediation typically involves a couple attending a series of meetings. Like everything else, family mediation has evolved during the last two years to cope with the impact of Covid-19 and more and more mediators are offering meetings over Zoom or other remote platforms. This has increased the accessibility of family mediation to separated couples who no longer live close to each other.
Family mediators are trained to help couples discuss the specific issues that they need to resolve following the end of a relationship. This can be sorting out financial matters, sorting out the family home and dealing with the arrangements for the children. Meetings are confidential and the parties can discuss a range of outcomes without fear of being held to them.
Most couples will need between 2-4 mediation sessions. As it will still take about six months to get a divorce, even with the change to no fault divorce, this gives plenty of time for issues relating to finances and children to be agreed, before the couple are divorced.
The role of your solicitor in family mediation
Your family solicitor can help you before mediation starts, in between sessions and when an agreement has been reached.
Both parties need legal advice as to what amounts to a fair outcome and all the things that need to be addressed at the end of a marriage or a relationship. The mediator cannot give you this advice. Their role is to allow both parties to set out their position and encourage mutual understanding, with the aim ultimately of reaching an agreement.
Solicitors and mediators often work hand in hand, although solicitors rarely attend mediation sessions themselves. Instead, your solicitor will help you prepare for the mediation, advise on your legal position and how a judge might approach things if called upon to do so. This can provide you will the confidence to hold your position during the mediation sessions or realise the points you might need to concede.
If both parties understand the framework they are working to, they can use family mediation to work through the best outcome for their family unit. The parties can check in with their lawyers in between meetings to check that all the issues are being covered and whether the possible options being discussed fall within the range of outcomes that would be deemed fair in law.
What happens once an agreement is reached in mediation?
If a couple can reach an understanding, they can go back to their respective lawyers to formalise this so a document can be sent off to court to be made legally binding. In the case of matters relating to children it may be that a Parenting Plan should be prepared.
What happens if an agreement isn’t reached?
Mediation isn’t the only way you can reach agreement in family law disputes. Often with advice from a family law solicitor you will be able to negotiate a mutually agreeable solution, whether this is about how you care for your children or the nature of a divorce settlement. If agreement isn’t possible in this way you may feel you need a third party to make a decision for you – either through arbitration or the court process.
Tips on getting the best out of mediation
Here are Kate’s tips for getting the best out of mediation:
Pick your mediator carefully
What many people don’t realise is that mediation is an unregulated profession, which effectively means that anyone can call themselves a mediator. If you need help to mediate a family law dispute, whether that’s about finances or children, make sure you choose a mediator who is experienced on these areas and has at least some knowledge of the law. Many mediators are also fully qualified family law solicitors, like myself, so they will understand the legal consequences of any agreements reached in mediation.
Stand your ground
Mediation can only work if both parties feel confident to negotiate. If you are intimidated by your partner, or feel they bamboozle you with facts and figures to get their own way, mediation may not be right for you. A good mediator would spot this issue and would normally advise that the case was unsuitable for mediation.
Be clear on the role of the mediator
A mediator is an impartial party and will not give advice to either party. It’s their role as a neutral third party to listen to both parties, provide a safe environment for discussion and help you both consider various options and alternatives so that you can reach your own decisions. As explained not all are legally trained so it is very important before you attend a mediation session that you are clear what your legal rights and responsibilities are by taking advice from a family law solicitor.
Get any agreement reached in mediation formalised
This is perhaps the most important point. An agreement reached in mediation is only of any legal significance if it is written down and formally approved as an order by the court in the form of a consent order. Without such an order it’s possible that either party could make a claim against the other at any point in the future.
The family lawyers at Woolley & Co, Solicitors all work alongside family mediators to ensure their clients receive the best possible support through their divorce or separation. Talk to your family lawyer about mediation.
