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 and before marriage/living together
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.
I have learnt as a divorce lawyer and mediator, that many people never have vital conversations before starting to live together about things which, if not addressed, can cause a relationship to fail. Believe it or not, but some people don’t even talk about whether they both want children. There’s very rarely a conversation about money, not just how you will treat your finances but also whether one of you is a saver and the other a spender. Differing views about the importance of extended family, in the case of second relationships how you will deal with each other’s children, how you’ll allocate day to day tasks, about spending time apart with your own friends, how insecurities from past events affect you in future relationships- the list is a long one. In the first romantic flush, it’s easy to avoid discussing fundamental issues. Doing so is however vital. I’ve sadly seen many basically good relationships founder when they may not have done if there had been a discussion early on. Mediation is a good way to have the talks which will help to future proof a relationship. It’s much easier to talk openly and freely with a neutral professional.
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. Also, when there are difficult legal arguments (such as about contributions which you say you have made by way of inheritance for example or spousal maintenance, we will, if you and they agree, see just the lawyers to find out whether the gaps in your different positions can be closed.That is potentially cheaper than having your lawyers in the mediation and could be a great deal cheaper than making an application to court with all the uncertainty as to outcome and the certainty of the substantial costs involved. Again,if you both agree and your lawyers feel that it is a good idea, a joint barrister’s opinion could be asked for on a problematic point to try to assist in reaching resolution.
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 and MIAMs?
Mediation is not obligatory although since April 2014, most people, before issuing a financial or children application in court, have to make a referral for a mediation information and assessment meeting, a MIAM, unless they can claim a specific exemption. When you make a MIAM referral, the mediator finds out whether the other person will attend a MIAM. If you both attend but your case is not suitable for mediation, the mediator signs the court application to that effect as he/she also does if the other person is not willing to attend a MIAM. You will usually have to attend a MIAM even if the other person is unwilling to do so.
In either case, you will have demonstrated satisfactorily that you have considered mediation, but cannot proceed. More positively, the meeting gives you the chance to decide with professional help whether mediation is a good option for you and your family.
Our charge for a MIAM including providing the signed court application if appropriate is £100 inclusive of VAT.
From 1st January 2016 only a mediator who is registered with the Family Mediation Council with the designation FMCA can sign the necessary court forms if a case is either not suitable for mediation at the outset or in the event that a mediation breaks down. Both Vanessa Stirum and Anne Braithwaite are FMCA mediators so can sign court forms.
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. Also, if you look up “legal aid keycard” online, that explains the limits of financial eligibility. 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. However, from April 2014, if there hasn’t been a MIAM, the judge at a first hearing in a family case will have to consider why not. The judge will be able, if s/he thinks it appropriate, to stand the case down so that both people will have the chance to attend a MIAM. That means that, if the other person wouldn’t attend one before you applied to court but you want to try mediation, you will be able to ask the judge to allow the time for that to happen.