Mediation is a process available to separating couples to assist them in reaching agreements about finances and children.

Mediation has existed for many centuries allowing people with disputes to enter into a dialogue overseen by a neutral person with a view to finding a solution that is acceptable to both of them. For many separating couples mediation can be a quicker more cost effective method and collaborative way to find solutions to the issues that have arisen between them.

Family mediation in the UK as we know it today can be traced back to the mid-1980s.  Since then family mediation has rapidly grown and developed in terms of usage and popularity into the comprehensive and diverse process that can be seen today.

Within the family sphere there are lawyer mediators – who initially  trained as lawyers;  and family mediators who initially trained in a therapeutic role such as a social worker or psychologist.

At the outset there was only one model for family mediation available.  This was the co-mediation model. As the mediation world is a dynamic and forward thinking a number of other models have developed which are available today, as set out below.  

However it is true to say that there are a number of standard features present in all mediations. These are

• the mediator is neutral
• the mediator will not provide any legal advice – but may provide information
• there must be a full and frank disclosure of financial information (financial mediation only)
• mediation is completely voluntary
• the parties must feel safe within the process
  

In this model consists there will be either a sole mediator or co-mediators. In some cases it is thought to be helpful to have two mediators often one from a legal background and the other from a therapeutic background.  It is likely to involve several sessions of between 1.5 and 2 hours. At the outset the mediator will be clear that all information communicated by one party will be shared with the other. It is not possible for a mediator to hold confidences.  The parties are therefore encouraged to have lawyers and usually consult their lawyers between sessions

This is an option available where at least one of the parties is unable to sit in the same room as the other party. The mediator will therefore move between two rooms to accommodate this. On occasions a mediation that commences as a shuttle mediation can develop into a classic mediation.

If the parties think it is helpful it is possible for their solicitors to be at some or all the mediation sessions. In a classic mediation the parties report back to their solicitors and seek legal advice between sessions. Solicitors being present can be particularly useful if a party feels more secure with “on tap” legal advice. The other advantage is that if joint proposals are reached solicitors can draw up a draft consent order or other necessary documentation there and then. Any points of difference or ambiguities can also be discussed and resolved.  Undertaking the mediation in this way can, however, be more expensive than the classic method because there will also be the costs of the solicitors’ attendance.

This model is a fairly new addition to the family mediation menu. It brings to the process elements of commercial mediation. The party’s solicitors will be present within the process.  The mediator conducts a number of meetings some with one party and their legal advisers some joint with both parties and their legal advisers.   The big difference in this model is that the mediator is not obliged to disclose to the other party information discussed at an individual meeting. A mediator will always check during a private meeting what information discussed can be shared with the other party. This can free up parties to brainstorm options in private with the mediator with only agreed points being shared with the other party. Where the mediator considers it helpful for certain information to be shared she will encourage a party to allow this to happen.

It is acknowledged that the voice of the child is important in mediations regarding arrangements for that child. Some mediators are trained to meet with children directly.  Either the mediator conducting the mediation or another mediator can meet with the children. The mediator will discuss with the parties the option of a meeting with the child. If the parties are in agreement the mediator will contact the child to see if he or she would like to meet with a mediator.  Any meeting between the child and the mediator is confidential. With the child’s permission the mediator can share certain information with the parties.

Prior to any mediation commencing the mediator will have individual meetings with the proposed parties to discuss what they would like to achieve in the mediation and to satisfy herself that both parties will be safe within the process and that it is appropriate for the case and if so in what form.

Mediation has continued to be a very helpful process for separating parties during this very difficult time. Mediation is now commonly undertaken remotely often through zoom or Microsoft teams. There have been a number of webinars available to mediators to assist them in competently undertake mediations remotely.

 Mediation is becoming an extremely popular and valuable resource for separating parties. The cost of mediation is usually much lower than the cost of court proceedings, with the parties often sharing the cost. The family courts currently have a very large backlog and, therefore, it is taking some time for hearings to come on for trial. If a matter can be resolved in mediation it is more likely to be resolved in a much more timely fashion.

A successful mediation also means that the parties have reached their own resolution in a way that works for them. In a court scenario, it is completely possible that a judge will make an order that neither party is happy with.

For any queries or to initiate a mediation please contact Margaret Kelly, a trained mediator and arbitrator on info@kmjsolicitors.com