Family mediation can be an effective alternative tool for disputing couples to reach agreements outside of court.
For Family Mediation Week (22 to 26 January), we sat down with Kirsten Tomlinson, Senior Associate in our family law team, to answer some of the common questions she gets asked about the mediation process.
1. What is family mediation?
Family mediation can help separating couples reach decisions together about various issues that can arise both during and after the separation and/or divorce process. The couple will meet with a specially trained mediator who will try and help them to resolve any disputes.
Family mediation is what lawyers refer to as an option for alternative dispute resolution or ADR. In simple terms, this means we can avoid issues being dealt with via litigation and court proceedings where a judge can make the final decision — if a separating or divorcing couple cannot reach an agreement themselves.
Family mediators can be trained in dealing with particular issues, for example finances and childcare arrangements.
Once an agreement is reached during mediation, the mediator will record in writing the details of the discussion and the overall outcome for the couple. This record will be sent to both parties to keep.
2. How much does family mediation cost?
Mediators will charge their own fees for each session. The couple usually share the costs of mediation or they may decide that one party should pay, for example if one party doesn’t have the financial means.
There is support available to enable couples to access mediation. For example, the Government provides a voucher scheme that awards a one-off contribution of £500 towards family mediation services if you are eligible and meet the criteria. This only applies to mediation for issues relating to children matters or both finances and children at the same time. Only mediators authorised by the FMC can offer this voucher scheme.
3. Do I have to sit in the same room as my ex-partner/spouse during family mediation?
Most mediation sessions will involve separating couples sitting together in a room with a mediator. However, if one party feels uncomfortable and feels the sessions would be more productive if they were separate from their ex-partner/spouse, then some mediators can offer ‘shuttle mediation’. This is where both parties sit in separate rooms and the mediator will act as a go-between.
Some mediators may offer remote mediation. This option has grown in popularity since the COVID-19 pandemic.
4. Can a mediator give us legal advice?
No, a mediator is not able to give legal advice to either party attending mediation. They can discuss what the law is in general terms, but they should not go beyond that. They are to remain completely independent and they should not take sides. The mediator’s main aim is to try and proactively assist with gathering information, identify issues and help the disputing parties to problem solve and reach a mutual agreement.
Each party should seek separate independent legal advice during the mediation process.
5. Is an agreement that is reached through mediation legally binding?
No, it is important for a separating couple to understand that if an overall agreement is reached at mediation, it is not legally binding.
There is a risk that either party could change their mind at a later stage and go back on the terms of the agreement reached during mediation.
6. How do I make an agreement legally binding?
It is advisable for one of the parties to instruct a family lawyer to prepare a legally binding consent order.
You can obtain a financial consent order and a child arrangements order by consent via the court. You do not need to attend court for the order to be binding — it can simply be done on paper and your lawyer will deal with this on your behalf.
7. If we don’t reach an agreement at mediation, what can we do next?
In some cases, separating couples are unable to reach an agreement — despite the help of a mediator.
If it is not possible to agree matters at mediation, legal advice should be sought to find out what options remain. If a separating couple are unable to reach an agreement between themselves at mediation or with the assistance of a lawyer, then it’s likely that a court application will be inevitable. However, often an agreement can be reached with the benefit of legal advice and negotiations between lawyers.
If an application is made to court, then ultimately the court will make the final decision in relation to any dispute involving finances and/or childcare arrangements. This process can be time consuming, stressful and expensive.
Before any one can make an application to court, the applicant (the person making the application) must first attend a Mediation Information Assessment Meeting (MIAM) with a mediator unless there is a valid exemption.
8. What happens at a Mediation Information Assessment Meeting (MIAM)?
A MIAM is usually a short meeting with a qualified family law mediator who will explain the purpose of mediation and how it can be used to resolve disputes without resorting to litigation. The mediator will also assess whether mediation is appropriate for the couple. For example, in serious cases of domestic abuse, the mediator may not deem it appropriate for mediation to take place.
The MIAM must be attended by both parties before a decision is made for mediation to proceed or not. If mediation will take place, a joint mediation session will be arranged. If mediation will not take place, then court proceedings will be issued instead. In the latter scenario, the mediator will sign a form to confirm that a MIAM took place and either failed or that an exemption applies. This will allow the applicant’s court application to proceed at court.
9. If we end up in court, can I tell the Judge about what was discussed during mediation?
No, you cannot tell the judge about what was discussed at mediation. Mediation is private and the information and details cannot be disclosed to the court. The discussions are what lawyers call ‘without prejudice’. The benefit of without prejudice discussions is that you and your partner can have honest and frank discussions without some of these points (or indeed concessions) being raised in court later if an agreement isn’t reached. Due to mediation’s private and confidential nature, the mediator cannot disclose the details and information to your family lawyer without your express permission. You can disclose the details and any agreement reached to your family lawyer — but you must grant a mediator permission to do the same.
Talk to us
If you need support and legal advice while going through mediation or for more information about other alternate dispute resolution methods, our family law team can support you through the process.
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