Resolving Disputes Together
What is mediation?
When couples or parents decide to separate, there will often be many practical issues which they need to resolve. These may include the arrangements for the care of any children, deciding who will live where, determining future ownership of the family home and separating any other jointly-owned property and finances. It is not uncommon for these decisions to be fraught with heartache and conflict.
Mediation is a process whereby both parties to the separation are enabled to come together in a safe environment to discuss their disputes with the assistance of a skilled and neutral third party. The mediator will facilitate open, future-focussed conversations, aiming to help the parties reach agreement. Mediation takes place away from court and, in many cases, the parties will never need to make a court application. It is known as a non-court dispute resolution process.
Mediation is not relationship counselling. The mediator is not a therapist. If parties are hoping to work on personal issues within an ongoing relationship, they should contact an alternative organisation (such as Relate).
Mediation is also different from arbitration. An arbitrator makes a decision (in a similar way to a Judge) on the parties’ dispute. Mediators do not make any decisions and do not tell the parties what to do. The parties are assisted to make their own decisions, by agreement.
How does it work?
One or both parties may decide to approach a mediation service themselves, or mediation may be recommended by their legal representatives. Occasionally, a court may adjourn or stay (postpone) an ongoing case to enable the parties to attempt mediation.
The mediator will initially arrange to meet both parties separately. This meeting is known as a Mediation Information and Assessment Meeting (MIAM). The meeting will probably take around 45 minutes to one hour. It is the party’s first opportunity to explain the background and the nature of the dispute to the mediator. The mediator will also give the party information about the mediation process, so that the party can decide if s/he would like to proceed further. The mediator will then arrange a MIAM with the other party. The contents of the MIAMs will remain confidential.
If both parties and the mediator decide that mediation is suitable and they would like to continue with the process, the mediator will arrange a meeting which both parties can attend together. The mediator will help the parties to identify the issues which they need to resolve and will assist them to discuss these issues constructively, hoping to achieve an agreement. The joint meetings will usually last for 90 minutes to two hours. Most parties will require more than one meeting; the mediation process would typically require between three to six joint meetings.
If the parties wish to resolve financial arrangements – for example, upon a divorce – they will undertake voluntary financial disclosure as part of the mediation process. This will mean providing evidence to one another in respect of their income and assets, on an open basis.
If the parties are successfully able to reach an agreed conclusion, the mediator will produce a document called a Memorandum of Understanding which will set out the agreement in detail. In financial cases, the mediator will also produce an Open Statement of Financial Information. This will set out all of the parties’ financial assets and can be used as part of any future court process if needed. If the parties wish to apply to court for a Consent Order to make their agreement legally binding, they are able to do so.
Why should I choose mediation?
- Mediation is almost always much quicker than making an application to court
- Mediation is often significantly cheaper than making an application to court
- The mediation process is designed to be collaborative, not combative
- Mediation is often successful
- Parties can discuss a wide range of issues in mediation
- Parties can be creative with mediated agreements
- Parties can control the mediation process and choose the dates and times of their meetings
- Mediation produces agreements; in court, a Judge decides the case instead
- Evidence shows that parties who mediate have a better future relationship with one another than parties who go through the court process
- Evidence shows that parents who can agree the care arrangements have better future relationships with their children than those who go through the court process
Do I have to go to mediation before I can go to court?
In almost every case, a party who wishes to make an application to court in respect of divorce settlements or child arrangements will have to show the court that they have attempted mediation by attending a MIAM. However, continuing with the mediation process beyond the MIAM is not obligatory, and the other party (who would be the “respondent” to any court application) does not have to attend a MIAM or take part in mediation either. Mediation is an entirely voluntary process. Nonetheless, Judges are keen to encourage parties to take part in non-court dispute resolution processes – such as mediation – wherever this is possible. Part 3 of the Family Procedure Rules sets out the Family Court’s duty to consider whether non-court dispute resolution is appropriate at every stage of the proceedings.
Can I still have legal representation if I go to mediation?
Yes, it is possible to continue to access legal advice and representation from either a solicitor or a barrister before, during and after the mediation process. In many cases, this will be encouraged. It is usually very sensible – particularly in financial disputes – to obtain legal advice in respect of any mediated agreement.
Can I bring my lawyer with me to mediation?
No, lawyers do not generally attend family mediations, although you may be able to make special arrangements with your mediator to enable this to happen in an appropriate case. It is possible to bring your legal representatives to other forms of non-court dispute resolution, however, such as round-table meetings, private FDRs and arbitration.
Can I bring anybody else with me to mediation?
It is rare to bring anybody else to a mediation, but it may be possible if both parties and the mediator agree. Sometimes, the mediation may directly involve more than two parties.
Is a mediated agreement legally binding?
No, the mediated agreement is not legally binding. However, it is possible to apply to the court to convert an agreement into a Consent Order. It is sensible to obtain legal advice before doing so.
If my case goes to court, can we tell the Judge what happened in mediation?
No. Mediation is a privileged process. This means that matters which are discussed during mediation remain confidential between the parties and the mediator. It is not possible to mention the discussions in court proceedings at a later date. This is so that parties feel free to discuss everything as openly and as honestly as possible within the mediation.
How much will mediation cost?
If you are not eligible for Legal Aid, the cost of family mediation is generally between £100-£200 per person per hour. However, the cost will vary between different mediation services. The overall cost of mediation is almost invariably much lower than the cost of taking a case to court and paying for legal representation.
Who will pay for the mediation?
Normally, both parties pay half each for mediation sessions. However, it is possible for the parties to agree to split the costs of the mediation in a different way, or for one party to pay all the costs of mediation.
Can I get Legal Aid for mediation?
It may be possible to obtain Legal Aid for mediation. This is means-tested. To check whether you are eligible, you can try the Government calculator on https://checklegalaid.service.gov.uk/scope/diagnosis/n43n14/n59 If you are eligible for Legal Aid, mediation will be free and you are also entitled to receive some free legal advice in respect of your mediated agreement. Some or all of the other party’s mediation sessions will also be free.
How do I know if the mediator is qualified?
All family mediators must register with the Family Mediation Council (FMC). This is a regulatory body which ensures that mediators are qualified and accredited. The mediator will also have to join a “member organisation” of the FMC. The member organisation will handle any complaints. You can find out more details about this from your mediator. Some mediators may also have other qualifications, such as being a solicitor or barrister. If so, they may also be regulated by the Solicitors Regulation Authority or Bar Standards Board. A mediator may be qualified and trained, but not yet fully accredited. The accreditation process takes place post-qualification and may take up to three years to complete. The mediator is still able to practise mediation during this accreditation period.
Can the mediator give me legal advice?
No. Even if the mediator is also a lawyer, the mediator should not give any legal advice. It is possible however, for the mediator explain to the parties about the court process and about the types of legal orders which may be made by the court. This is just for information purposes and is not the same as legal advice.
What if I change my mind about doing mediation?
If you decide at any point that you no longer wish to continue with mediation, you are entitled to withdraw from the process. Mediation is voluntary at all times. You do not need to give any reason if you decide to withdraw, although it would be helpful if you are able to discuss the reasons with the mediator, because it might be possible to find a solution to the problem.
What if I do not like the mediator?
As in many scenarios, it is important that you are able to develop a good working relationship with your mediator if possible. If you do not like the mediator, or you feel they are not a good “fit” for you, you do not have to continue with mediation. You may decide to discuss the issue with the mediator to see if you can reach a solution, or you may decide to try to find another provider.
My ex-partner wants to go to mediation but I am not sure, what shall I do?
It can be daunting if your ex-partner has approached a mediation service, which has, in turn, approached you. You do not need to worry. You are not obliged to attend any meetings if you do not wish to do so. However, it might be sensible to attend the first meeting so that you can get all of the information before deciding whether you are willing to continue with mediation. Remember, the MIAM is confidential, so you do not need to worry about the mediator telling your ex-partner anything you have said.
I would like to see my grandchildren, but their parent will not allow me to. Can I use mediation?
Yes. While we often refer to former partners or spouses, mediation can also take place between people who have not been in a relationship with one another.
I am scared of seeing my ex-partner but I want to sort out our dispute. What shall I do?
You may be frightened of your ex-partner because they have behaved in an abusive or violent way towards you. There may not have been abuse in your relationship, but you might be frightened of their reaction if you saw them now. There is no need to worry about the first stage of the mediation process. You can contact a mediator confidentially and discuss all of these issues at the MIAM. If the mediator is of the view that mediation is not suitable because of any issues of abuse, or if you decide that you do not feel able to continue, the process can end there without the mediator even contacting your ex-partner. If you and the mediator together decide that you do feel safe enough to continue, then the mediator could contact your ex-partner at that point. In some circumstances, parties do not have joint meetings together in the same room. “Shuttle” mediation can take place, when the mediator passes between the parties in separate rooms. Sometimes, plans can be put into place so that the parties do not sit in the same waiting area, or arrive at and leave the building at different times.
I am worried that my ex-partner just wants to go to mediation to try to get us back together. How can I avoid this?
The mediator will not allow the mediation process to be used by one party to either abuse the other party or as a means to try to rekindle the relationship. The mediator can bring the process to an end if needed. It is not uncommon for parties to have differing views on the status or future of their relationship; this may be something which you wish to discuss with your ex-partner during the mediation.
Can we sort out our finances and the arrangements for the children at the same time?
Yes. One of the major advantages of mediation is its flexibility. While you would need to make separate applications to the court in respect of divorce, financial settlements and child arrangements, in mediation you are free to discuss and make agreements in respect of whatever you like. It is possible to discuss issues in respect of which the court would not even have the power to make orders.
I think that my child would like to tell somebody how they feel about the care arrangements we are making for her/him. How can that be organised if we don’t go to court?
You may have heard of Cafcass (Child and Family Court Advisory and Support Service) which will often appoint a worker to meet with a child and report the child’s wishes and feelings to the court as part of the evidence in a case. This is not available during mediation; however, in some circumstances it is possible to partake in child inclusive mediation. This is where the mediator or another appropriately qualified child consultant meets with the child to discuss their views. These views are then fed back to the parties to the mediation. This will only take place with the agreement of the parties and the child her/himself.
My ex-partner and I live too far apart to have meetings together, what shall we do?
It may be possible to make alternative arrangements for your mediation, for example attending by a video call instead. Mediation can be much more flexible than the court process if needed. You may be able to make appointments later in the day or at weekends to accommodate work arrangements, or you may need to make sure that appointments fit in with childcare responsibilities.
What happens if I want to tell the mediator something without my ex-partner finding out?
After the MIAM is concluded, the rest of the mediation process is not confidential from the other party. The mediator will not keep secrets and will have to tell the other party what you have said, unless this would compromise your safety.
I am worried that my ex-partner won’t be honest about their finances if we try mediation. What can I do?
All aspects of mediation are voluntary. In order for a financial mediation to be meaningful, both parties ought to provide full and honest information about their financial situation. However, the mediator cannot compel a party to do this. It is hoped that all parties to a mediation will approach it as a collaborative process and will therefore see the mutual benefits of being as open as possible. If you feel the other party is withholding some information, you should raise this during the mediation and try to find a solution. If you still feel the other party has not been honest and this means that you do not believe you are able to continue, then you can withdraw from the mediation. It is often sensible to access legal advice in these circumstances. Any financial information which is provided during the mediation is given on an open basis. This means that it does not remain privileged and you can tell the court at a later date if the other party is not forthcoming with their financial information.
No5 Barristers’ Chambers
Laura Vickers is a family law barrister who now undertakes family mediation. She is a member of Resolution and the Family Mediators Association. You can arrange to contact her on 0845 210 5555.
You can read more about family mediation here:
You can also find lots of information for separating parents on the Cafcass website: https://www.cafcass.gov.uk/
The Government Legal Aid calculator (for all areas of eligibility): https://www.gov.uk/check-legal-aid