What is Family Mediation?
Family mediation is a voluntary, confidential and privileged form of alternative dispute resolution. It involves the appointment of a neutral and impartial third party (the mediator) who helps the parties reach a negotiated solution to their dispute. The mediator does not have any authority to impose a decision on the parties. Instead, the mediator helps to facilitate discussion between them, identifies potential solutions and assists the parties to reach their own informed decisions. The parties retain control over whether or not to settle the dispute and on what terms.
When would a family think about using a mediation service?
Family mediation is commonly used by couples who are married, in a civil partnership or cohabiting to resolve disputes relating to:
- Separation.
- Divorce or dissolution of civil partnership.
- Property and financial matters.
- Children, including contact, residence and financial arrangements.
How Does Mediation It Work?
Types of family mediation
There are two different types of family mediation:
Sole mediation
This is the most common form of family mediation. It involves the instruction of a single family mediator to moderate and facilitate dialogue between the parties. As sole mediation involves the instruction of a single mediator, it is cost effective and can be quick and convenient to schedule a number of meetings. The disadvantage of sole mediation is that the process may break down if an issue arises that is outside the scope of the mediator’s expertise. Alternatively, additional costs may be incurred if it is necessary for the parties to jointly instruct a third party expert to assist with resolving such an issue.
Co-mediation
Co-mediation involves the instruction of two mediators who work together in the mediation process. This type of mediation is usually used in civil disputes. There is no set way in which co-mediators work together. Some co-mediators work alongside one another, whereas others choose to divide their functions. For example, one mediator may focus on facilitating discussion between the parties, while the other takes notes. The way in which co-mediators function will often depend on the parties’ needs and the nature of the dispute.
The mediator’s role is that of an impartial third party who facilitates communication and discussion between the parties. The mediator also manages the mediation process by:
- Making administrative arrangements, such as supplying a neutral venue for the sessions and providing documentation for completion by the parties.
- Chairing each session and moderating communication. The mediator ensures that discussion between the parties does not become one sided or unbalanced.
- Setting ground rules and ensuring they are complied with. For example, part of the mediator’s role is to prevent abusive and inappropriate language and behaviour between the parties.
- Helping the parties manage their time and discussions productively and constructively. The mediator is responsible for ensuring that the agenda is followed.
- Identifying, developing, suggesting and exploring options when the parties reach an impasse in discussions.
- Reality testing options which have been identified as possible solutions to the dispute.
- Helping the parties find the best option available to resolve the dispute.
The mediator is not a decision maker and while the mediator can provide information to both parties during the process, he will not provide legal advice. For example, a solicitor mediator can provide information about the law which may assist the parties to make decisions in the mediation process, such as explaining how the court would deal with a particular issue, but he cannot make a recommendation or give an opinion about a particular option or course of action.
Following the mediation process, the mediator is responsible for producing documentation that the parties will be able to share with their representatives and who will assist them is drafting and lodging the agreement reached with the court. You will appreciate from the above that the agreement reached in mediation is not binding. It only become binding when there is a court order.
What are the benefits of mediation for families?
Speed. The parties are in control of the speed at which mediation progresses. If the parties want to, they can speed the process up by scheduling a number of mediation sessions at the outset of the process. Alternatively, they may choose to proceed at a slower pace, scheduling each session individually. As timetabling each mediation session is not dependant on overburdened court resources and judicial listing, mediation is often a much quicker dispute resolution process, compared with litigation.
Saving costs. A mediator’s hourly costs are generally far lower than a lawyer’s hourly charging rate. In privately paying cases, the parties tend to share the mediator’s costs between them. For both of these reasons, mediation is often a far cheaper dispute resolution process, compared to collaborative law or litigation, both of which are led by lawyers funded by a single party.
Party autonomy. The parties decide whether to settle the dispute and if so, on what terms. They therefore retain greater control over the process and outcome than they do in court proceedings.
Preserving better relationships. Mediation is an interests based rather than rights based process of dispute resolution. This can make it easier to preserve good working relationships between the parties. This is particularly important if the parties have children who they will be co-parenting in the future.
Confidentiality. All discussions that take place in mediation and any documents that are produced are without prejudice and cannot be disclosed unless the parties agree.
Flexibility. The parties have greater control over the mediation process and can decide, for example, how they want to deal with issues such as disclosure in a financial dispute. Unlike court proceedings, they can agree how and when they provide this disclosure.
Creative outcomes. Agreements reached between the parties in mediation can consider wider issues and take account of personal interests, unique to the parties involved. Mediation therefore often results in far more creative and bespoke solutions than are achieved in litigation. A dispute decided by court proceedings can only consider the merits of each party’s legal rights.
Lasting settlement. The mediation process involves reality testing various settlement options. This rigorous scrutiny and assessment means that a mediated settlement has a far greater chance of being adhered to by the parties and enduring than an order imposed on the parties by a judge. The latter may fail due to unintended consequences or non-compliance by either party.
Disadvantages of mediation
It can be difficult to persuade a party to mediate for the following reasons (some of which may be misconceived):
Inability to compel disclosure. In mediation, the mediator asks the parties to produce the necessary information and documents. Errors and misunderstandings can be explained and clarified in the sessions. Unlike court proceedings however, the mediation process cannot compel either party nor a third party who is not involved in the process to take a particular step or to disclose information or documents.
Inability to verify disputed facts. Mediation is a forum within which the parties work together to reach a mutually acceptable consensus. Unlike court proceedings, it is not an adversarial dispute resolution process. The mediator’s role, unlike that of a judge, is to facilitate discussion between the parties. Disputes that need a decision to be made about a factual issue, such as whether jurisdiction has been seized, are unsuitable for mediation.
Waste of time and duplication of costs if unsuccessful. If mediation fails to achieve consensus between the parties on all issues in dispute, one or other party may feel that the process has been a waste of time and money. Court proceedings usually follow a failed mediation and in a financial dispute, disclosure will need to be provided and additional costs incurred, should the parties instruct lawyers. Duplication of costs can however be mitigated by the parties agreeing to use any financial disclosure produced in mediation in any subsequent court proceedings. This can be done by including a clause to this effect in the agreement to mediate.
Uncertainty of outcome. In other forms of dispute resolution, such as family law arbitration or litigation, the parties are guaranteed a result at the end of the process. There is no such guarantee of a result or determinative outcome in mediation.
Who pays for mediation costs?
Parties will share the costs of mediation or this can be difficult when one party is earning and the other is not. Part of first meeting will be used to discuss this issue.
What if my ex-partner won’t come to mediation?
If your ex-partner will not attend mediation then the mediator will provide you with the necessary forms to issue proceedings. If there is a live dispute between you both then you still need a forum to reach a resolution. When one party will not engage the court recognises that the only other option is for the court to resolve the dispute and therefore accept an application for proceedings to be issued.
What happens if mediation is unsuccessful?
Again as discussed above, if you do not reach a resolution at mediation, which will need compromise then the mediator will issue the necessary documentation for either party to issue proceedings.
Can I bring evidence to mediation?
The term evidence is rather emotive. Mediation is a forum to discuss and reach a resolution, not a forum to blame the other party. The mediator will however need to see information in relation to the value of the house, how much the parties earn etc. There is a need for both parties to provide full and frank financial disclosure, whether in mediation or if there is a court dispute. Mediator’s and solicitors can only assist parties when there has been the benefit of full and frank disclosure.
What happens if I don’t want to do mediation?
If you do not want mediation and you refuse to accept the invitation then your ex-partner will be issued with the form to enable them to issue proceedings.
For more information about mediation please contact Simon Walker on 01935 813 691 or email simon.walker@mogersdrewett.com we are here to help.