Mediation during divorce or separation – the process and its benefits

read time: 4 mins

At Ashfords, our specialist family team supports and encourages clients to use alternative methods to help navigate difficult discussions when their relationship reaches the end of the road. There are a number of options that  can help avoid stressful and expensive court proceedings. One is mediation, and with this week being Family Mediation Week, this article introduces mediation and its benefits.

What is Family Mediation Week? 

Family Mediation Week is organised by the Family Mediation Council, the organisation that oversees family mediation in the UK. 

This year, Family Mediation Week runs from 22 – 26 January 2024 and aims to raise awareness of family mediation and the benefits to separating couples. There are a number of online and in-person available events for the public, professionals working with families (including teachers, mediators and coaches) and for those working in the family justice system

What is mediation? 

Mediation involves an independent third party who helps facilitate discussions between separating couples. Where direct discussions have broken down, involving a neutral can help guide a more constructive conversation. 

Mediation can be held remotely or in person and is conducted by a trained mediator. This is often, but not always, a family lawyer. Mediation enables discussions about issues that arise in relation to family breakdown, whether the couple is unmarried, married, in a civil partnership and whether or not they have children. 

Some mediators are trained to also be able to involve any children in discussions, if it is age-appropriate to do so, to ensure their wishes and feelings are heard.

What are the benefits of mediation? 

Mediation helps separating couples keep control over the decisions relating to their family and enables them to make decisions together. Keeping discussions open can also help to keep communication flowing. This is particularly important where there are children, to promote and encourage a healthy co-parenting relationship. 

Mediation is typically a cheaper and quicker option to resolve agreements after separation, it also enables the couple to set meetings at an agreed pace and on days and times to suit. Where direct discussions feel uncomfortable or have broken down, often the presence of a mediator to guide discussions can help a couple move through an impasse. 

Do mediators provide advice and is it binding? 

Mediators cannot provide legal advice. Individuals may be provided with information within the mediation, but it is not advice and it is important to seek specific advice alongside mediation from a trained lawyer. Choose a lawyer that supports mediation and will support you through the process.  

Mediation is not binding and you can take the time to go away and consider any agreement before formalising it, or to pause to discuss anything you are unsure about. The mediator will document any agreement reached in a memorandum of understanding. It is important that the contents of the memorandum are then put into a court order for finances, or to consider the benefits of a parenting plan if discussions relate to children. 

Any agreement about finances is not legally binding until a court has approved the agreement into a court order, even if divorce proceedings have concluded.

How to make a successful mediation

Find a trained mediator and meet with them to discuss mediation and to see if the mediator is the right fit. It is important to go into mediation with an open mind, ensure the legal advice taken beforehand is not so specific that it discourages flexibility in any discussions. It is also key to go into the process with a willingness to be open, transparent and to provide details about any financial matters and concerns. 

Be prepared and follow any steps asked by the mediator, be patient and respectful to each other and keep in mind that one person may be more emotionally ready to deal with discussing the future. It can also be helpful to seek the support of a therapist or coach alongside the process to ensure that discussions in mediation are not emotionally charged. 

What are the alternatives to mediation? 

Mediation forms an important option for separating couples. It is a necessary step before court proceedings and will ultimately help a number of couples to resolve their dispute. 

There are also other similar options that can be used, including Resolution Together. This new approach aims to help separating couples with just one lawyer. Another option is collaborative law, where both individuals have a specially trained collaborative lawyer to help them navigate a solution beneficial for the whole family. The process is completed by a series of meetings, with the benefit of having legal advice available during discussions. 

In some situations, it is not appropriate if one person is refusing to disclose information, is being unreasonable or there is a history of abuse.

Could mediation or alternative dispute be helpful for you or your clients? 

If you are interested in finding out more about mediation or the other options for navigating discussions after separation, we have the experience to help. We also have a number of trusted mediators with whom we can put you in touch to help you take the first step. 

Please contact the family team for further information.

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