Published on January 4, 2023

In most cases, working out your own arrangements in mediation following separation or divorce is the best way forward. This is because it is quicker, less expensive, and less stressful than court proceedings. It is also worth noting that in a recent survey from the Family Mediation Council, mediation proved a successful choice in over 70% of cases. Together with the mediator, you set the agenda, and you retain control of the outcome. But are the arrangements made in mediation legally binding?

Following separation, it can be difficult to make arrangements because there has been a breakdown in trust and communication. A family mediator, who acts as an entirely neutral impartial third party, can help to facilitate difficult conversations, and assist you to structure arrangements that are unique to your own particular circumstances, whether these relate to financial matters, children or the future of your relationship. A family mediator will manage the process so that it is less overwhelming, and will help to reduce conflict and improve communication.

The discussions that take place in mediation are ‘without prejudice’. This means that they cannot be referred to in court, and the arrangements that you reach are not binding.

Where does mediation take place?

Most mediations take place with you and your ex in a room together with the mediator. However, if you have concerns about sitting in a room with your ex, you can discuss these in detail with the mediator in your initial meeting, and where appropriate, the mediator can arrange ‘shuttle mediation’. This means that you and your ex will be in separate rooms, and the ‘mediator’ will shuttle between you. The initial meetings that you and your ex have with the mediator are held with each of you separately, and are confidential. This gives you the opportunity to explain your circumstances, discuss your concerns, and find out in detail about the mediation process.

Memorandum of understanding

The discussions that take place in mediation are ‘without prejudice’. This means that they cannot be referred to in court, and the arrangements that you reach are not binding. At the end of the mediation process, your mediator will provide you with a document that will set out the proposals that you have reached. This is called a ‘Memorandum of Understanding’. The mediator will also set out details of your financial information in a document called an ‘Open Financial Statement’. Unlike the ‘Memorandum of Understanding’, the ‘Open Financial Statement’ can be referred to in future court proceedings, if these become necessary because mediation breaks down.

If you are getting divorced then the proposals that are recorded in the Memorandum of Understanding in respect to financial arrangements, can be made legally binding by incorporating them into a ‘consent order, which is submitted to the court for a judge’s approval. If you have not been married, then you can formalise the arrangements that you have reached in mediation in a Separation Agreement. It is a good idea for a specialist family solicitor to draw up the ‘consent order’ or Separation Agreement to ensure that your proposals are properly implemented, and that if necessary you can enforce them in the future if your ex doesn’t stick to what has been agreed.

One of the major advantages of mediation is that you and your ex can draw up comprehensive arrangements for the future co-parenting of your children. These can be incorporated into a Parenting Plan, which in addition to covering the day to day living arrangements for your children, can also deal with broader issues relating to your children’s health, religion and education. Whilst it is not usually necessary, if you do not think that your ex will stand by the child arrangements that you have reached in mediation, a court can make an order in respect to the arrangements. A family solicitor can advise you if this is necessary, and can draw up the court order for you.

You can find out more information on all things mediation-related on the Family Mediation Council website or on this Hub where we have many articles explaining more about mediation and and how it can help you and your family.

Rebekah Gershuny contributed to ‘Separating With Children 101′, 3rd edition, (Bath Publishing 2023).

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Mediation is the process through which independent mediators try to help a couple reach agreement about the arrangements to be made for children and/or finances following their decision to divorce or separate. It is sometimes wrongly thought to be a discussion about the relationship and whether a reconciliation is possible. 

Should I Be Concerned About Going To Mediation?

Some separating couples are wary about mediating. There is plenty of evidence, though, to prove that mediated settlements are longer-lasting than court decisions, are less acrimonious and are cheaper. The benefits of mediation are worth considering even if you are cautious. It is a good way of resolving issues and disagreements because it means you can work together to find solutions that work for you both and which take into account your respective priorities and objectives. You can also work out a resolution that’s totally tailored to the needs of your children. This point alone makes it really worth considering.

Mediation Can Offer A Safe And Supported Space

Mediation can often help to avoid miscommunication and misunderstanding because you are talking to each other directly and the mediator can help you both to be clear about what it is you are wanting to say. The mediator provides a safe and supported space and helps you to structure your discussions so that they remain on track. They can guide you through difficult processes like resolving financial issues on a step-by-step basis. The mediator is an expert in family issues so they can provide information and guidance on all aspects of separation.

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