Published on January 3, 2023

The simple answer to such a question is: ‘I don’t expect you to’. There are many situations where family mediation is not the best option for an individual or a situation. This may be one – possibly.

But… If not family mediation, then what else can you do? Before I answer my own question, I should like to reflect on some of the issues that our title raises.

There are some occasions when mediation ought not to be attempted. Those cases will be identified by the careful screening carried out by family mediators before they agree to conduct a mediation. It may be because one partner is abusive or there may be mental health issues or other reasons why one party might be too vulnerable to try mediation.

You only enter family mediation if you choose to do so.  What is more if you change your mind, you are absolutely free to stop the mediation at any stage.

But there are far more occasions when the difficulties presented by ‘the Nightmare Ex’ can be addressed within mediation by a skilled and experienced family mediator. It is part of what mediators are trained to do.

Nearly everyone who comes to family mediation has some negative feelings about their Ex. The breakdown of a relationship is a time of turmoil when individuals in and around a family have to find new ways of relating to each other. During that period, it is more than likely that the way individuals behave will make difficulties for those around them. And, whilst we might previously have seen the foibles of our Ex as minor irritations, they will now be experienced as major wrongdoings. Add to that what the philosopher Bertrand Russell called ‘emotive conjugations’[2] and all the ingredients are there for most separating individuals to see their Ex as a Nightmare.

However, what if your Ex really does deserve the title ‘Total Nightmare’? If so, it may well be unrealistic for you to be expected to mediate.

Which is part of the reason why family mediation is strictly voluntary. You only enter family mediation if you choose to do so. What is more if you change your mind, you are absolutely free to stop the mediation at any stage.

Choosing not to mediate

Of course, choosing not to mediate is not the end of the matter. You still have to find answers to the problems that come with the ending of a relationship. Questions like: ‘What happens to our belongings?’ ‘How will the needs of the children be met?’ and so on. Decisions about these issues will have to be made at some stage. And that almost always means that, sooner or later, the two of you are likely to negotiate and reach agreement. So perhaps it might just be better if you could reach that agreement sooner and be done with it.

Choosing mediation

So what if you decided, after an Assessment Meeting[3] with a Family Mediator, that it was worth trying family mediation?

Well the ‘Total Nightmare’ will still be a total nightmare – but they won’t be your responsibility. The Family Mediator will be responsible for managing the mediation process so that progress can be made. They will have various strategies and methods for managing the discussion. In the most difficult cases, they might even suggest that mediation takes place with you in separate rooms (though this does bring its own problems). Your only responsibility would be for yourself and your own behaviour in the mediation process.

What’s more, if the ‘Total Nightmare’ proves unwilling or unable to behave reasonably, the Family Mediator can and will bring the mediation process to an end.

Assessment meeting

It may be worthwhile to reflect on what should happen at your Assessment Meeting. There are four elements to that meeting – which is likely to last at least an hour:

  1. A conversation about your situation – so that the Mediator understands what you are facing and the things you need to make choices about
  2. An explanation of the family mediation process – what it does, and what it doesn’t do, how long it might take and what it is likely to cost – and other alternatives to Court
  3. Importantly, a careful screening of the situation to check whether there are reasons why you should not mediate
  4. Thinking about your next steps.

Each part of this Meeting is important to the decision whether family mediation is suitable: the issues that bring you to the meeting must be such that you are able to make choices; the process must offer you whatever you need so that you can then make informed decisions, there must not be factors that would make mediation unsuitable; and you must be free to make the final decision as to whether you want to try mediation or not. You will also know what other options there may be – including Court – if you decide that family mediation is not for you.

If the Family Mediator has conducted the Assessment Meeting well, you should be fairly clear in your own mind whether, despite your Ex being a ‘Total Nightmare’, family mediation is worth trying.

But just a note of caution: If you don’t feel that the mediator has listened to you carefully; if they haven’t explained the process and satisfactorily answered your questions; if they haven’t explored with you the things that might make mediation unsuitable; or if you feel that you are being pressurised into agreeing to mediate, then you should not mediate (or perhaps better, you should not mediate with that mediator).

Remember that no-one has to mediate and if, having attended the Assessment Meeting, you decide that you don’t want to mediate, then don’t.

Which takes me back to my first question: ‘If not mediation, then what else can you do?’

Alternatives to mediation

There are alternatives, and the Mediator will explain them as part of the Assessment Meeting

You might feel more comfortable in Collaborative Family Law where you sit down with your solicitor, your Ex and his solicitor, with the two solicitors working together help you to negotiate. The fact that two solicitors are involved should tell you that it is a more expensive option, but it will be a better option for some, and there are two professionals to make sure your Ex behaves properly.

Or perhaps Family Arbitration with a private judge appointed to make decisions for you.

Or you might ask your solicitors to negotiate on your behalf with each other.

Or you might go to Court.

The mediator will be able to explain all of these options to you and answer your questions and explain what each is likely to cost you, and how long they are likely to take.

A final thought: When children hear their parents speaking ill of each other, it is toxic for them. So even if you think that your Ex is a ‘Total Nightmare’, if you have children, try your best to make sure that they don’t hear you say it.

[1] Psychologists call this ‘negative sentiment override’ and contrast it with the ‘positive sentiment override’ experienced by couples in the early stages of a relationship where the other partner can do no wrong.

[2] Seeing your own behaviour as perfectly acceptable whilst regarding similar behaviour in others as terrible.  It was memorably employed by the character Bernard Woolley in the 1980s BBC television series ‘Yes, Prime Minister’ who said: ‘It’s one of those irregular verbs, isn’t it? I have an independent mind; you are eccentric; he is round the twist.’

[3] The Assessment Meeting, known as a ‘MIAM’ is usually compulsory if you wish to make an Application to the court for a Child Arrangement Order or Financial Relief Order.

Paul Kemp contributed to ‘Separating With Children 101’, 3rd edition, (Bath Publishing, 2023)

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The Impact On Children

It is so easy to be told that you need to put your children first when we are separating, but what does it actually mean? When your life is turmoil and emotions are running high this can feel daunting when there are so many things to think about. If you have a child with someone, then regardless of whatever you think of them or whatever they might have done, they will still have an important role to play in the life of your child. Exceptions to this are rare. Possessive language that excludes or minimises the role of the other parent can negatively impact the relationship between that parent and the child and can increase conflict and make it more difficult to co-parent. We know that conflict and/or parental absence in particular has a negative impact on children.

Parents need to create the right conditions for children to thrive.

For children, whilst separation will bring inevitable feelings of loss and change, they can still thrive if their parents work in partnership to create the right conditions. We know that children are more likely to adapt with fewer problems, and less emotional distress, when parents are able to part with compassion and continue to work together in partnership even when they are not together. On this hub you will find lots of article and tips on how to minimise the impact on children. For example; how do you set up two homes? How do you co-parent well? What does it mean to put your children first? How do you tell your child you are separating? What do I tell the school? What about holidays? And much more...

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