Here at Bonallack & Bishop, we are big fans of family mediation – though we accept it doesn’t suit everybody.
Our experienced family lawyers regularly use mediation to successfully settle family law issues for clients throughout Wiltshire, Hampshire and Dorset – from our offices in Salisbury, Andover, Fordingbridge and Amesbury.
Using a mediator as a means of resolving disputes between separating couples is becoming increasingly popular in family law. Mediation receives the full support of the UK government and judiciary as a means of sorting out issues between separating couples, and encourages communication and negotiation at every stage.
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How does family mediation work?
Family mediators understand that when relationships break down, talking face to face can seem the hardest thing to do. Skilled mediators can help the process by keeping communication channels open and working with couples together to reach the right decisions about their problems. In particular;
- Your mediator may have a number of sessions with you and your partner in an attempt to assist you reaching agreement – up to 6 sessions lasting up to a couple of hours is not unusual.
- Family mediators provide impartial guidance in helping you both agree on a fair and practical solution.
- You may seek advice from your own independent solicitor at any stage on what is right for you (see below for news about mediation meetings taking place with your own solicitor present).
- When you have both reached an agreement you are content with, your own solicitor will help you complete the legal formalities.
- Resolution-trained family mediators routinely conduct mediation alone. However they can, if you wish, work alongside a second mediator.
New service for 2018 – family mediation meetings with solicitors present
Resolution (previously known as the Solicitors Family Law Association or SFLA), is an organisation of 6,500 family lawyers and other professional, who believe in a constructive, non-confrontational approach to resolving family law problems.
Resolution has now created a new hybrid mediation model merging some elements from commercial and civil mediation with family mediation.
This is a really useful alternative – because some clients like the idea of mediation but find a real problem with attending meetings alone without their lawyers. In particular, Resolution themselves describe this new hybrid mediation model as “ necessary where either or both parties have high conflict personalities”.
Why use a Family Mediator?
Mediators can really help tone down the emotional heat and in particular:
- It can cut the emotional cost of divorce or separation by reducing hostility between the parties.
- Family mediators often speed the whole process up – whether it be a divorce case or disagreements about arrangements for children – simply by getting couples together to work out a solution rather than exchanging seemingly endless correspondence between solicitors.
- The process avoids expensive court battles. Just one mediator is able to act for both parties in any family dispute – the specially trained ‘lawyer mediator’. There can be significant advantages in appointing such mediators as they have both specialist legal knowledge and mediation skills. Much of the legal work can be done by just one lawyer mediator at the same time, significantly reducing legal fees.
- Because mediation keeps couples talking, it can have a hugely positive effect on children who benefit simply from knowing their parents are working together to sort things out. Showing your children that you can cooperate and act as adults will be extremely beneficial to them in the long-run.
- The process encourages couples to work out their own solutions, leading to the best outcome for everyone involved.
- The benefit of the level of communication often seen in mediation can often help overcome barriers and misunderstandings – and ensure that both parties are able to come out of the experience positively.
How family mediation can help you
Couples going through a relationship breakdown, or other family members experiencing problems, can benefit from mediation services in a number of ways including:
- Divorce or separation;
- Disputes over residence or contact arrangements for children;
- Unmarried relationships;
- Problems in a same sex relationship;
- Grandparents or other family members experiencing difficulties in seeing children.
Family mediators provide impartial advice and assist couples in reaching practical solutions which seem fair for all involved.
The need for a jointly qualified family lawyer/mediator
Quite a few family mediators have no legal training or qualification. However there are real advantages in appointing a jointly trained ‘lawyer mediator’.
Why? A lawyer/mediator has both specialist legal knowledge and experience as well as mediation skills – and as a result much of the legal work can be done by just one lawyer/mediator at the same time, significantly reducing legal fees.
Why appoint a mediator without any legal training when you can appoint a fully legally trained specialist with many years of experience as a lawyer as well.
How long does mediation take?
The time needed for family mediation to reach an agreement or settlement depends entirely upon the issue or issues being discussed, their complexity, the availability of both parties and their mediator for meetings and, most importantly of all, the willingness of the parties to co-operate.
However, as a very rough guide, the average case takes perhaps between 3 and 5 mediation sessions of up to an hour and a half each.
What won’t family mediation do?
It is important to understand the role that the family mediator plays and crucially, what the mediator won’t try to do.
- Although mediation is targeted at making dispute resolution following relationship breakdown easier, it’s important to remember that your mediator is not a marriage counsellor, and therefore they won’t attempt to repair your relationship
- Your mediator won’t give either of you advice. Their role is informative and they must be completely impartial throughout the process. If you want your own independent legal advice, you will need to instruct your own family law solicitor.
- Family Mediators are not judges. Your mediator is there to guide parties and help them make their own decisions and agreements
Is Family Mediation really cheaper and quicker?
Yes, and that’s not just our experience.
According to the “Value for Money Report” by the National Audit Office [the Government sponsored auditor of public funds] the average family law case is resolved by mediators in an average of only 110 days – compared with 435 days for the average non-mediated and court resolved settlement – and , what’s more, the costs involved in the average mediation settlement were less than 45% of the legal costs involved in court resolved disputes!
At what stage should I get a mediator involved?
As soon as you suspect that you might not be able to come to an agreement between you, you should contact a family mediator. Regardless of the stage you’re at, mediation can help as it consists solely of talking through issues and trying to come to an agreement. Whether you’ve only just split or even if the case is already going through the court, mediation can help to reduce costs, stress and anxiety.
Do I keep my own solicitor for advice?
Family mediation works best where each of the couple’s own solicitors are available to advise before and/or between mediation meetings.
What’s more you require legal advice before moving on towards mediation, you should speak to a specialist divorce solicitor first. They will be able to advise you on the best way to move forward and may be able to help you prepare for your mediation sessions
Family Mediation – how can your own solicitor help?
- Advise you on the documents needed for disclosure and analyse the documents disclosed by the other side – this is particularly important in cases involving a financial settlement, when both parties need to know exactly what the others financial position is
- Advise you on what you ask for from the negotiations, ensuring that your demands are in the best interests of you and your children in the long run
- Discuss any alternative options with you
- Discourage you from taking any unreasonable position during mediation
- Guide you throughout the entire process until a final decision is made
- Draft or amend the court documents and orders that allow any agreement reached in mediation to become legally binding once approved by the court
Family mediation – do I need to instruct my own lawyer first?
So, why appoint your family lawyer before the mediation process even starts?
First and foremost, it is important to remember that family law is complex, and, especially when it comes to financial settlement, many people don’t have a realistic idea of what they are likely to get. An experienced family can advise you on the range of possible outcomes from your divorce settlement – that means you go into mediation with an idea of what a fair settlement is going to look like.
Receiving the right legal advice early on means that parties are able to make the most of the whole mediation process – and will probably be able to reach a fair and reasonable settlement more quickly as a result – which will also keep your legal bill down.
Divorce – whether it’s pursued in court or through mediation – is a very emotional and often stressful time which can make it difficult to keep calm and reasonable during discussions.
Your lawyer will be able to tell you honestly if what you are looking for is reasonable – and can also offer support and advice throughout the whole mediation process.
Can family mediation help children?
This is one of the biggest potential advantages of family mediation, and there is plenty of evidence to back this up.
Recent surveys by both Relate [the UK’s largest provider of relationship support] and Netmums [the online parenting organisation] amongst others, have shown the potentially very damaging effects of disputes between their parents when that relationship broke down.
Family mediation can play a really important role in helping children cope with a parental bust up. In particular, not only does the speed of a mediation settlement help them, but most importantly they see their parents working together to find an answer without unnecessary hostility and bitterness.
Reaching an agreed settlement through family mediation allows parents to emphasise that despite spitting up, they can still work together – a reassurance that children so desperately need.
If you have children, and you’re going through a relationship breakup, it’s well worth considering seeking the help of family mediator, purely for its positive effect on your young ones.
Mediation and resolving family financial disputes
When it comes to a any divorce financial settlement, even though you are using mediation, you must fully disclose your financial situation. Failure to do so might negatively impact on the settlement that is made and the courts will frown upon it greatly.
If mediation is used, then usually the mediation process helps both parties to come to an acceptable agreement regarding family finances. But if both negotiation and mediation fail, it may be that the only remaining option is to take the matter to court.
What is a MIAM?
If you make any application to court to look at any dispute following relationship breakdown, a MIAM is the first stage – in both applications to deal with family finances and arrangements for the children from the relationship. In an attempt to avoid unnecessary and expensive court hearings, the judge will normally require you to attend a MIAM to see if your case is suitable for mediation.
A MIAM involves meeting with a family mediator who will give you an initial explanation about how mediation works and how it might help you, given your particular circumstances. It is normally shorter than a full mediation session – lasting perhaps around 45 minutes.
MIAM meetings will normally involve both parties – but if there is any reason why you feel that you can’t be in the same room as your ex-partner, your mediator can set up 2 individual one-to-one meetings with each of you instead.
Will I always have to attend a MIAM?
No. Sometimes there are circumstances when the court won’t require you to attend even the initial MIAM. Those exceptions include, for example, cases where one of you simply refuses to attend a MIAM meeting, your mediator confirms your case is simply not suitable for mediation, and where you have been in touch with 3 family mediators within 15 miles of your home and cannot book a meeting with any of them within the next 15 working days.
What happens after the MIAM?
If both parties agree to attend mediation, then a date will be set for your first full mediation session.
Family mediation – am I guaranteed confidentiality?
The matters discussed during the mediation process are completely confidential so you can feel free to openly discuss all issues of concern.
No details of any agreements or the points discussed will be shared with anyone outside the session without your permission – and that includes any lawyers you’ve instructed. The only information that does need to be disclosed is certain information required by the courts – such as full disclosure of both parties financial position when negotiating a financial settlement following divorce.
Is a settlement reached at mediation legally binding?
In short, no.
After you have come to an agreement together, the next date would usually be for both of you to consult your own solicitors. After you have both received legal advice of your own and when both you and your solicitors are happy with the proposals, one of the solicitors will convert the summary into a draft consent order which becomes legally binding when approved by the court.
In all normal circumstances neither party nor their solicitors need attend at court – but judges do emphasise that it isn’t simply a rubber stamping exercise, and if they see anything in the paperwork that they’re not sure about, they may ask for an explanation before granting any court order.