JoCarr-West looks at how to reduce the damage caused by family breakdown
Separation is a time of high conflict and emotion, and family dynamics are often damaged beyond repair. Family mediation offers a positiveopportunity to resolve disputes, reduce hostility,and preserve your future relationship. It alsohands to you the control over decisions affecting your family.
Family mediation ultimately is used to resolve disputes of a legal nature that might otherwise be litigated at Court. Itenables couples todiscuss their issues in person, with the assistance of an entirely neutral third party. The mediator provides relevant factual information and assists the parties to reach their own agreements.
When is mediation suitable?
Recent changes in family law mean that if you want to issue formal court proceedings you might be required to attend a meeting to find out more about the mediation process as an alternative, but this does not make mediation compulsory.It is an entirely voluntary process and that is why it works.
However, if you do not feel able to have honest and open discussions and safely state your point of view, then mediation may not be for you. The mediator should meet with you both, preferably individually, at the outset of mediation to screen for this and ensure that mediation will be a safe environment for you, both emotionally and physically.
Who can be a mediator?
Mediators can be lawyers or come from a more therapeutic background, but the bestones are those trained specifically in family mediation and who are members of a specialist organisation such as the Family Mediators Association or Resolution, a national association of family law professionals.
How confidential is it?
Information exchanged in mediation is confidential to you, the other party, the mediator, and any lawyers who might be advising each of you. However, if there were, for example, a child protection issue, the Mediator might need to breach that confidentiality to ensure the protection of the child by reporting to the appropriate service.
How does mediation work?
The mediator will work with you and your partner to identify the issues that need to be resolved. For example,do you need to make decisions about where people should live, how that can be afforded, or whether one party should support the other financially?Do you need to decide how much time your children should spend with each parent, or where they go to school?
Once the issues are identified, the mediator will help you to decide if you have all the information that you need to help you bothmake decisions and, if not, what else is needed. A timetable is likely to be agreed for obtaining information, setting out who needs to do what and when.
The next step is usually to try to narrow the issues, see what options exist, and talk them through.This might begin to reveal areas of possible agreement, and outcomes that might work.
Discussions regarding finances are conducted on a “without prejudice” basis. This means that if the mediation breaks down and one of you makes an application to Court, the Judge cannot be told about what has been discussed.
How long does it take?
Each family is different and while some problems may take only one or two sessions, it is more common for there to be a series of sessions over weeks or months. Even this is usually quicker and more cost effectivethan the alternative court process.
What happens when an agreement is reached?
If a financial agreement is reached, the mediator will provide you with two documents: a financial statement recording the financial information provided during the mediation, and a “Memorandum of Understanding” recording the agreement reached.
A divorcing couple should always have the financial arrangements they make recorded in a Court Order which is agreed and signed by you both and lodged at Court as a ‘Consent Order’. Once this has been approved, you are both formally bound by its terms. That process, however reached or agreed, runs alongside the mechanical process of obtaining the divorce, and the Court’s power to make the order arises from the divorce proceedings.
If you reach an agreement about children you might want the mediator to assist you both in drafting a Parenting Plan, or you might want the mediator to provide an equivalent to the financial “Memorandum of Understanding” that you can refer to in future or discuss with your solicitor.
How much does it cost?
Some mediation services are free, but you would need to ensure that their timescales match your needs. Legal Aid may be available and you should take advice on whether you would be eligible for this.
Charges by family lawyers and other mediators vary and include fixed fees and others hourly rate but in London seem to average around £200 – 350 per session. The total cost is however likely to represent a significant saving on resolving disputes through the Court, with both sides incurring legal fees which can, in the most adversarial of cases, run into to tens of thousands of pounds.
Jo Carr-West is a family mediator and lawyer at Hunters firstname.lastname@example.org.