Mediation as a concept is often a misunderstood word in the legal world. One of the biggest misconceptions being that mediation can help you mend your relationship, a bit like counselling. The simple answer is, it cannot. The two are very different.
Once a couple have come to the decision to end their relationship, then mediation is designed to facilitate communication and help couples move forwards.
With this in mind, here’s a quick, easy-to-read guide explaining the process of mediation:
What is Mediation?
Put simply, mediation is a voluntary process for couples who have already decided to separate or divorce.
It is focussed on helping couples resolve and prevent disputes in relation to property, assets and finance. If there are children involved, it also includes the least acrimonious way of reaching mutually acceptable proposals relating to their care, contact arrangements and co-parenting plans. It can help couples find a way to move forward, for the sake of the children and also helps parents to concentrate their attention on the important issues.
Mediation is confidential, allowing both parties to speak freely and directly to each other in a neutral environment.
Who can use it?
Whilst mediation is typically used by the separating or divorcing couple it can include anyone affected by family breakdown. For example, a grandparent or step-parent who is affected by the breakdown of the relationship.
In some limited cases, it is also possible for children to be included in the mediation process so that their wishes are taken into consideration especially if there are older children who have views of their own as to what they want to happen. These decisions have implications for children.
Mediation is available whether you’ve been separated recently or for a long time. Likewise, you’re able to attend mediation if you’ve already sought legal advice or commenced court proceedings.
How does it work?
Both parties must agree to mediate about issues that need to be resolved as a result of their separation. The mediator is there to facilitate and manage the process. The role of the mediator is to be impartial and not to represent or favour either party. They will not tell them what to do, nor make judgements about what has happened in the past. The purpose is to look to the future rather than dwell on the past to allow closure in the least acrimonious way.
To start the mediation process one party will usually make a referral. Then each party will be invited to a separate Mediation Information and Assessment Meeting (often referred to as a MIAM). This will take place with a Mediator who will then explain the process, discuss their case and assess whether mediation is the right option for them.
If both parties and the Mediator agree that mediation is appropriate, the first mediation session will be arranged. The first meeting concentrates on identifying the issues to be resolved and prioritising them. If this meeting is constructive, it usually takes between three and five meetings to reach mutually acceptable proposals, depending on what you need to sort out.
A Mediator can provide legal information but not legal advice, so it is always sensible to consult a solicitor at the beginning of the process and then as and when required throughout the process.
One very important point to note is that any agreement reached in mediation is not legally binding until legal advice has been obtained and a court order has been secured. So, if the mediation subsequently breaks down, it is possible for either party to negotiate afresh despite what may have been agreed during the original process.
After obtaining legal advice to formalise the agreement a solicitor can draft a consent order which reflects the agreement which will then become legally binding in a court of law, thereby protecting both parties.
What are the benefits?
- Mediation is sometimes seen as the least stressful process and the research shows that it secures better results, particularly for children, as it is based on discussion and agreement.
- Parties are often more controlled and directed to the salient issues rather than focusing on the past. They can tailor make their own agreement which is specific to their circumstances rather than having one enforced upon them by a court.
- It promotes better communication between the parties in the future. Arriving at the agreements together in a more amicable fashion often nurtures better communication, understanding and trust moving forwards.
What if it’s not right for me/us?
Mediation isn’t always the right solution for everyone. And it isn’t the only way for disputes between separating or divorcing couples to be resolved.
It’s advisable that both parties seek independent legal advice to ensure that they have a clear understanding of all options open to them before final decisions are made.
If you would like to chat in more detail about matters relating to mediation or Family Law, please contact me at 0800 011 6666 or via email at d.khunkhuna@timms-law.com.
