Mediation is one of the ways that provide an alternative to litigation in the courts to resolve family disputes and/or make arrangements about children, finances and other personal matters after separation or divorce.
Mediation has been around since the late 1980s in England and is now well established. It is based on two main points:
- The negotiations are held in a principled way.
- An independent mediator meets with the parties and facilitates the negotiations.
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The Basics of Mediation
Mediation is not relationship-guidance or counselling. The mediator may have a counselling background, but the aim of mediation is to find a solution and make arrangements for the future, not to provide therapy or look into why the relationship broke down.
Mediation can be useful when the relationship has broken down, or many years later, for example when arrangements which parents have made for a child become outdated as the child gets older. It often helps parents to learn to communicate about the welfare and arrangements of their children again, which continues to be important even after separation and even when the children are grown up.
In most relationship breakdowns communication problems are the main or a contributory reason. This does of course create a major problem when right at the time when the parties find out that their communication problems have led to the breakdown of their relationship they have to communicate about a range of issues in order to disentangle their relationship. This is where an independent third party can help.
The mediator is an entirely independent person who can be a family lawyer with special training, or may be someone with a therapeutic or social work background. Such people can be suitable mediators in cases which centre on issues about children rather than finances. A family lawyer is probably best suited to deal with financial issues because they are experienced in financial settlements after relationship breakdown and can therefore easily help the parties reality-test any proposals which they are discussing.
The Mediation Process
The mediator may first talk to both of you separately, either face-to-face or on the telephone to see whether mediation would be suitable for you. After that the entire process is dealt with in meetings between the two of you and the mediator. These can be weekly or every other week, depending on what you agree to do in between, such as getting together your financial disclosure, which may take a bit longer.
A mediator cannot advise either party nor will they adjudicate and tell you what you should do. Instead the mediator will facilitate the process, while you will come to a proposal for an overall solution – you are in charge of the outcome, the mediator will help you through the process.
Once you have come to an understanding, the mediator will prepare a memorandum of understanding and send a copy to each of you. This is not yet binding and you can discuss the outcome of the mediation with your solicitor before you finally commit yourself to an agreement. If you do, both your lawyers will convert the understanding into a formally binding agreement. With financial issues after divorce or dissolution of a civil partnership, this would be a consent order that can be submitted to the court for approval. So at the very least one, but preferably both, of you will still need to have a solicitor so that you can convert the understanding into a legally binding agreement. However, this should be relatively straightforward and cost a fraction of what you would need to pay for legal fees for court proceedings. If you decided not to stick with the understanding after all, neither of you could use what was said in mediation or summarised by the mediator in later court proceedings, except the financial disclosure.
Meeting your former partner face-to-face can seem daunting, especially if you have ended up having arguments when you tried to talk. Meeting in mediation can help you through this because there is an independent specially trained mediator who will lead the conversation and make sure that you talk about what matters. This does not mean that you will be forced into the line of thinking of the mediator. Quite the contrary, the mediator will try to adopt the process to your particular circumstances. What is more, people who may be losing their temper when they are alone with someone are often a lot more civilised when they are with a third party.
You can decide to go to mediation on all issues or you could decide to mediate about specific issues only, e.g. mediation on contact with children as part of an overall negotiated process or as part of a collaborative law process.
Mediation often works best if both former partners have supportive advice and guidance from their own solicitors, especially if the negotiations involve financial issues, and/or with support from family consultants or counsellors. The mediator is independent and cannot be a member of either lawyer’s firm.
Mediation does not work for everyone, for example if there is a history of bullying or violence. Generally, both partners have to be very committed and function well. The particular mediator needs to be the right person for the couple and should be chosen carefully.
It can make sense to agree that if one partner feels mediation does not work, you will try collaborative law. Doing so at the outset means your supporting solicitors will already be qualified collaborative lawyers.
The mediator will meet with you for as many sessions as are necessary and usually charge at about their usual hourly rate. This can be a bit less for mediators from a counselling background, who may charge between £75 and £200 per hour (plus VAT if they are registered for VAT), while solicitor-mediators charges may be £200 to £600 (per hour plus VAT), depending on seniority and location, London rates being on the higher end. With typically 3 to 5 sessions, the costs are far below those of litigation. Since you share one mediator instead of paying your own lawyers each, the overall costs can be £3,000 or less between both of you together.
Your solicitors may then need to convert the understanding reached in mediation into a binding agreement. The costs for this will depend on the case and on how many more questions you have about the agreement. Your solicitor should be able to give you some guidance once they have seen the mediator’s memorandum.
How to Find a Mediator
If you are mediating about any financial aspects, you should definitely choose a mediator who is also a family lawyer specialising in financial cases. An easy way to find a solicitor mediator is through the Resolution website. When you choose a mediator, look at their online profile, ring them or meet them for a first intake meeting or MIAM. Do not just think whether they are right for you, but choose someone who your former partner can trust and feel comfortable with. If you suggest two or three mediators to your former partner, it gives them the choice to select which one to go with.
For advice on your specific circumstances please contact a solicitor
25 May 2016 by Andrea Woelke