There are a number of different routes to mediation depending on a couple’s individual circumstances.
- Some couples are already aware of mediation services and may approach a mediator directly when considering a separation to begin the process of discussing how they will divide assets, arrange maintenance, organise contact and so on.
- A solicitor will discuss options including mediation and may refer you to a mediator.
- A judge may ask both parties to consider what is termed ‘alternative dispute resolution’ which includes mediation when an application is made to the court.
In fact, in most cases, before you apply to the court in a family matter, you will be referred to a mediator for what is called a Mediation Information and Assessment Meeting (MIAM).
There are obviously cases when mediation is not appropriate. In cases involving domestic violence, for example, mediation would usually not be recommended.
The single most important factor which determines whether mediation is suitable, however, is both people’s willingness to engage in the process.
The Mediation Process
If you are both interested in mediation, one of our mediators will meet with both of you separately to find out what your individual needs and concerns are. In this MIAM (Mediation Information and Assessment Meeting), you will have ample opportunity to discuss with one of our mediators both the emotional and practical challenges you face, what fears you have about the future and what you want to achieve through mediation. It will also give the mediator the opportunity to assess your individual case and determine if there are any insurmountable barriers to mediation.
Once your mediator has all the information they need and has assessed your case’s suitability for mediation, they will bring you and your partner together to begin the mediation process.
Mediation usually takes place over a number of sessions. Your mediator will usually be able to give you an idea of how many sessions this will take at your initial meeting.
During the sessions themselves, openness is the key to success. Each of you is given equal and ample opportunity to explain what you need to move forward from the relationship. You will have the chance to explore a variety of resolutions available to you with the mediator providing an impartial perspective on the various outcomes. The mediator, using their wealth of experience, will make suggestions and help you both to think about the practical and emotional results of possible arrangements.
During the process the mediator does not advise either of you independently, but does provide legal information which may affect your negotiations and which should ultimately help you to reach a viable agreement.
Of course, there are some cases where people fail to reach agreement. Even then, in financial cases, you will have the disclosure exchanged in the mediation and you will probably find that the process has helped both of you to understand the other’s position better than before which will help in resolving matters through your solicitors.
Successful mediation concludes when an agreement is reached which satisfies both of you. Your mediator will then write up this agreement in what is known as a” Memorandum of Understanding.” This is where Anne Braithwaite Mediation Chambers is exceptionally well-placed to assist you in this capacity. With many years experience behind them, our mediators will produce documentation which takes into account the framework required to make your proposals legally binding subject to legal advice. This in turn will make it easier and quicker for your solicitor to create the necessary paperwork. Not only is this likely to reduce legal costs, but also to minimise the stress involved in the separation process.
Making the separation legal
Once you’ve reached an agreement, your respective lawyers will take the Memorandum of Understanding produced by the mediator and, subject to their advice, will prepare a separation agreement or application for consent order in divorce proceedings.
Mediation along the line
Whilst mediation is most commonly used when couples are going through the process of a separation and divorce, it remains available even years after the initial separation terms have been agreed. It is useful to bear in mind that mediation can be very helpful if changes occur much later on which affect issues relating to your children and/or financial arrangements.
1. Does mediation replace the need for lawyers?
As a mediator can only give legal information and cannot advise you as individuals, it is important that you both have legal advice. You can take that advice between sessions and discuss any points raised during mediation with your legal representative to see how they would advise you to proceed. Your lawyers will also deal with any divorce proceedings for you and help you to make any agreement you reach in mediation legally binding.
2. Can my lawyer be present during the mediation sessions?
Provided you both agree, your lawyers can be involved in the mediation process. On occasion, it may also be useful to involve other professionals such as accountants and financial advisers in certain sessions, but again this has to be by your mutual agreement.
3. Does mediation only cover finances and children?
Although for a large proportion of separating and separated couples, these are the key areas of concern, mediation aims to help you tackle all the issues relating to your separation. Your mediator will be able to tell you specifically during your initial meeting if there are areas where another specialist would be able to provide more appropriate help and guidance.
4. Do I have to go to mediation?
Mediation is not obligatory although anyone issuing a financial or children application to the courts does have to show they have considered it as an option. There are two ways of doing this:
- If your case is not suitable for mediation, the mediator will supply a Form FM1 to send to the court together with your application.
- You undertake an individual MIAM (Mediation Information and Assessment Meeting) even if the other person is unwilling to engage in the mediation process.
In both cases, you will have demonstrated satisfactorily that you have considered mediation, but cannot proceed.
5. How much does mediation cost?
Some people qualify for public funding to pay for mediation. Your solicitor should be able to tell you if you might qualify. Although we do not do publicly funded work, we will check if you are likely to qualify when you contact us. We will explain our charges when you contact us. You effectively share the cost although who pays can be negotiated as part of the mediation process. What is certain is that mediation is a great deal cheaper than the usual legal process.
6. My partner is unwilling to seek mediation. What can I do?
You can’t enforce a mediation process on an unwilling party. Mediation has to be entered into by both parties on a voluntary basis. When you or your solicitors make a referral to us, we will find out whether the other person will come to an assessment meeting. If they remain unwilling to participate, your only option is to pursue matters through your legal representative.