All of our family lawyers at Ashfords are members of Resolution, the organisation of family lawyers committed to helping couples with their separation in a non-confrontational manner. This week, Resolution are supporting Family Mediation Week and so are we. In this article, senior associate Samantha Newton provides an overview of all things mediation.
What is mediation?
Mediation is a very effective tool for helping separating couples navigate discussions, in relation to children, property and money as well as any interim issues. It involves an independent, professionally trained and neutral third party (the mediator), helping facilitate discussions between you and your partner in a series of meetings. The ultimate goal being that you will reach agreement on the issues you are mediating. It provides a flexible approach, which can be adapted to suit you and your partner’s needs. Importantly, like other out-of-court options, it also gives you both the power to stay in control of the outcome without a decision being imposed on you by a third party.
Is it right for me?
Many cases are capable of being resolved at mediation and so there is a very good chance mediation is right for you. If you are a victim of domestic abuse, there are allegations of harm to a child, or there is a power imbalance then mediation is unlikely to be right for you. As lawyers, we have a duty to act in our client’s best interests - this includes making sure that we provide advice about all of the different options available for navigating legal issues. If you are unsure about the range of options available, your lawyer can give you a steer – otherwise the mediator will run through this with you in your initial session. If you find you are reaching an impasse, your partner is being very unreasonable, there is a disagreement about a valuation of a business or property, your partner is refusing to disclose information or being dishonest, or you need some additional hand-holding then it is sensible to take some advice about other options.
What is involved?
There are a number of excellent mediators available, if you have a solicitor then they will be able to recommend some locally to you. Otherwise a good starting point is the Family Mediation Council’s website. You will have an initial one to one with the mediator who will explain the process, the other options available and discuss your circumstances. You will be able to get a feel for if the mediator is right for you, and to express your hopes, concerns and aspirations for the process. Your partner will then be invited to a session on their own, and thereafter you will have a series of meetings (either by video or in person). There is no limit to the number of meetings, and it really depends on you and your partner and the issues you have to discuss. It is much cheaper, and less stressful than engaging in contested court proceedings.
What will give mediation the best chance?
Mediation requires willingness on both sides to discuss issues. You will both need to be prepared to attend mediation with an open mind, and be prepared to compromise. Any negotiation requires trust to be really effective - so be open, honest and thorough in your disclosure and discussions. Whilst there will inevitably be difficult moments in the process where emotions will be high, try and remain calm and communicate in a positive way with the mediator and your partner. It is also important to be prepared before mediation, and follow the steps the mediator asks of you between sessions. Finally, be realistic in what you want to achieve.
It sounds good, but can I still get advice?
Absolutely. The mediator is impartial and so cannot give any legal or financial advice or take sides. At any stage during the process you and your partner can take time out of the session, to contact your own lawyer(s) or financial adviser(s) for advice. The process is completely flexible to suit you and your partner, so if at any point you are uncomfortable, you are unsure, you can request a time-out to take advice. The mediator is required to notify you if there is a legal issue you need to take advice on.
Is it binding?
Mediation is not binding, all of your discussions are ‘without prejudice’ which generally means they cannot be referred to later if the mediation breaks down. Usually, the financial information you will provide will be set out in an open document which you can rely on later. This means that mediation is a safe space for you and your partner to have open and creative discussions about options which might work for you, without being held to them. Once an agreement is reached, your mediator will prepare a summary which you can take to a solicitor to have documented into a binding legal agreement.
Is the only other option court?
No, mediation is one of a number of options for resolving issues arising from your separation out of court. Other options include direct discussions, lawyer-led negotiation, collaborative law, arbitration, and private dispute hearings. Resolving your issues out of court gives the best chance of keeping relations amicable between you, this is particularly important where you have children together.
To find out more about mediation or other out-of-court options, contact our specialist Family Team.