We are getting lots of enquiries about Mediation just now – I think recent Government announcements have created a degree of confusion as to what’s going on, so it is timely that we are able to offer this article up for public consumption. If you need to find a Mediator, please use our directory. If no-one is listed in your area, please contact us and we will help you find one.
There is not much Suzy doesn’t know about family law – and this article is a really useful summary. Suzy – many thanks!
You’ve probably heard something about mediation. People talk a lot of rot about it. Some believe that it is the best thing since sliced bread, something that everybody in a dispute should try, that it provides an environment where the playing field is levelled by a skilled, impartial practitioner and people have the opportunity to speak to each other as adults. Others believe that it is a charter for bullying, that it disadvantages parties who start from a position of weakness, and that it causes delay in situations where time is of the essence. The truth is, as ever, somewhere in between – or rather, it’s in the eye of the beholder. Everyone’s experience will be different. So let me tell you a little bit about it so you can start to form your own opinion.
Why the fuss about mediation now?
Mediation is an entirely voluntary process. You cannot force anybody to mediate. What you can do, however, is to force people to learn about mediation: starting with those who want to apply for a court order in a children or financial matter on or after 6 April 2011. This is part of the government’s cunning plan to reduce pressure on the creaking family courts (the other part being the removal of legal aid from almost all family proceedings – but that’s a different article!).
After 6 April 2011, anybody who wants to start court proceedings in a family matter either relating to children or finances on divorce is required to attend a “mediation information and assessment meeting” which will explain about the process of mediation, and seek to determine whether the case might be suitable for mediation. They will not be able to file a court application until they have done so, with a few exceptions. Those eligible for legal aid have been under this obligation for years as a requirement of their funding, but the requirement is new to those who are above the legal aid threshold.
With all the new emphasis on settling disputes outside the courts you might think that mediation had just been invented: but of course, it’s not a new process. People have been referring themselves to mediation in family disputes for a few decades now, and good family solicitors have always encouraged parties towards mediation. There are many highly experienced mediators out there, and many good newly-trained ones too. Mediators come from all walks of life, often from law, social work or counselling backgrounds – they’re normal people, just like you and me, trained and good at providing the right environment for consensus to take shape, if it can.
So what happens in mediation?
The first step of the process is to meet with the first person involved in the dispute – in the case of a mediation information and assessment meeting, this would be the party required to attend the meeting by law as a precondition to filing an application at court. The mediator will explain that mediation is a voluntary process that respects the autonomy of the people participating. It supports the belief that the people themselves are the ones best placed to decide their affairs if they are able to do so. The mediator’s job is not to make decisions for the participants, but to support them in their joint decision-making by creating a neutral and calm environment for constructive discussion. The mediator remains entirely impartial throughout.
In this initial meeting, the mediator will take a short history of the dispute and note his or her initial feelings about whether the issues might be suitable for mediation. Finally, if the person decides that mediation is something he or she would like to pursue and the mediator feels that the case is suitable, the mediator will write to the other person involved to offer them a one-to-one appointment to discuss the process in a similar way. Only when the mediator has seen both people individually will he or she make the decision on whether the case is suitable for mediation.
In a first full mediation session, the mediator will seek to clarify the areas of dispute between the parties and will start to reframe the issues in such a way that the he or she helps the parties to talk to each other, and progress towards finding a mutually-acceptable solution that supports their interests and the interests of any third parties, such as the children. Children are very much at the heart of family mediation, and the process supports the idea that in most cases, parents are best placed to decide what is best for their children rather than the courts imposing a view.
There is no set number of sessions for mediation: it depends on the circumstances. The aim is to get to a “memorandum of understanding” which records matters where there is some agreement, big or small. The agreement is not legally binding until it is formalised by lawyers, which is particularly important in the case of financial arrangements on divorce. Although it is not essential to get legal advice while going through mediation, it is recommended, especially where financial futures are at stake.
The pros and cons
Almost invariably, it will be less expensive to mediate a dispute about a family matter than to take the dispute to trial in a court. Expense is about more than money, too: the contrast in emotional expense can be huge, particularly where those involved have a continuing job to do as parents to the same children. Whereas mediation helps to rebuild and support the relationship between parents and aims to establish constructive means and methods of communication, the court pits parent against parent in a battle to decide who is “right”. At its worst, this can be incredibly destructive to the parenting relationship, and can have a terrible impact on children.
There is no question that mediation requires bravery. In the face of what looks like an impossible situation, it may seem like too big a leap even to be in the same room as your children’s other parent, or your former spouse. But the skilled mediator does have a number of tools to help in situations like this: it may be possible to try shuttle mediation, where the parties remain in different rooms and the mediator moves between them; alternatively it may be possible to use two mediators, perhaps of different genders, where there are issues regarding high conflict and fear. Many mediators might make the point that in situations like this, the ability to sort out a dispute in a supported and constructive way can be hugely empowering.
Of course, some cases are not suitable for mediation, either because the power imbalance between the parties is too great, because the dispute is too complex, or because there are child protection concerns or a history of violence (for instance). However, for those who can mediate safely, with few alternatives left and facing a difficult and expensive court battle, there may be more to lose from passing up the opportunity to give mediation a go, than from trying it. Yes, mediation does sometimes fail, but at least you’ve tried if it does.
Family mediators consider that the government’s compulsory meetings are a great opportunity for people to learn about mediation; to use it, and to tell their friends about it. So many people say they’d do anything for their kids – I personally hope that this means they give mediation a proper chance before hitting the court. After all, fortune favours the brave.
Professional support lawyer, family law