Family mediation is being increasingly used by separating/separated couples who wish to discuss issues arising from their separation, often involving children or financial matters. Commonly used by parents, mediation can also involve grandparents or the wider family where appropriate.
The process offers participants a safe and confidential environment, hosted by an independent professional, the mediator, who’s purpose is to guide the often difficult and sensitive conversations, provide legal information and assistance during the journey.
By mediating, couples can avoid the uncertainty, cost and acrimony associated with litigation; the process may also help preserve the relationship between separated parents, allowing them to make their own decisions in the future, rather than relying on the courts.
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How the mediation process works
The process starts with each individual attending a Mediation Information and Assessment Meeting (MIAM); this is an opportunity for the mediator to understand the reasons why the participant has sought assistance and explain the options that are available to them. The mediator can then decide whether mediation is safe and appropriate.
If mediation proceeds, the participants will agree on an agenda for discussions. Having set the agenda, the participants then discuss the issues that need resolving, with the mediator guiding them and providing legal information where appropriate.
In financial cases, the mediator will recommend the parties exchange financial information with one another either by completing financial booklets or using the court form, ‘Form E’, to identify and propose values of any significant assets. The mediator will help participants look at how best those assets can be divided and is able to explain legal parameters to help and inform the discussion. The role of the mediator includes reality testing proposals to see if they are workable in real life.
Cases involving children
Where family mediation includes discussions regarding children, the government currently provides financial assistance to mediating parents. In these circumstances, the mediator can apply for a ‘mediation voucher’, which contributes up to £500 to the costs of mediation. Eligibility for the voucher is not means tested, therefore the participants’ income and assets are not a factor taken into consideration.
Within mediation where child arrangements are discussed, both the mediator and participants will hear proposals from one another as to why they feel their proposals are in a child’s best interests. These proposals are reality tested to see how they will work, to identify if there are other situations that might work better and to consider unexpected issues that might arise.
Throughout the mediation process the mediator will focus the participants on finding solutions that work best for the children, not necessarily their parents or guardians. In some circumstances, specially trained ‘child inclusive’ mediators can arrange with parents to meet children directly as part of the mediation process. Both parents need to agree to the child/ren being spoken to; this allows children to have a voice within the mediation process, giving them a sense that they have input when parents are making decisions about their care. Equally it is helpful to parents to hear their children’s views when discussing arrangements; this can help them re-focus on what is best for their children, having heard from them directly.
At the end of the process, if proposals have been made either in respect of children or financial matters, the mediator will prepare a formal document, known as a memorandum of understanding. The memorandum sets out the discussions the participants have had, the proposals they have made to resolve children and / or financial matters and the reasons for reaching those proposals. This is a ‘without prejudice’ document but can be given to solicitors who can then draft a consent order which, if approved by a court becomes legally binding. If in relation to financial matters, the memorandum is accompanied by an open statement of the financial information that the decisions were based on, intended to aid solicitors and the court to understand the financial basis of the proposals and whether the proposals are ‘fair’.
How to start mediation?
Once a suitable mediator has been found, enquiries can be made either individually or, if both participants have already agreed to mediate, the enquiry can be made jointly. An enquiry can also be made when one participant is unsure whether the other participant will agree to mediate; this will then be explored by the mediator’s office.
If the enquiry is made by a sole participant who is unsure whether the other participant will agree to mediate, the other’s contact details will be taken and they will be contacted with an invitation to a MIAM. Whilst discouraged by the court, there will be occasions where a participant wants to undertake a MIAM simply to enable them to make an application to the court, without including the other party. Whilst discouraged, it will be a matter for the mediator to decide whether the other participant is contacted and invited to a MIAM or not.
Once the second participant is invited for a MIAM, it is then a decision for the mediator and participants as to whether they wish to engage in mediation. As such, the second participant may decline to attend a MIAM, at which stage mediation will not proceed. Similarly, the mediator may not be prepared to mediate if they feel there are factors that make mediation unsuitable.
How long does mediation take?
Depending on the issues involved, mediation usually requires two to four sessions to fully discuss matters and come to conclusions. Each session can take between one and one and a half hours, and can take place in a variety of formats to suit the needs of the client, including face-to-face, shuttle mediation (where participants are in separate rooms but in the same building), online, or hybrid.
Depending on the issues to be discussed, there is often a short gap between each mediation session, ranging from two to six weeks or longer. Longer gaps might be needed if the parties need to obtain specific financial disclosure, such as pension or business reports.
Whilst on average taking between three to four months to conclude, the process of mediation is far quicker than the court process for either children and / or financial issues.
You might be interest to know about the Mediation Voucher Scheme.
