What is the Family Mediation Process?
Divorce is often a difficult time for people and can be emotionally charged. Now that it is not necessary to show that one person is at fault to obtain a divorce it is now a relatively straightforward procedure, which can take place online.
What can be less straightforward for many couples is restructuring their family finances and agreeing arrangements about the children. Mediation can assist in helping people find a resolution thus avoiding the stresses and strains of going to court. Mediation is less expensive than court proceedings and avoids the long delays faced by couples going through the court process.
What is Family Mediation?
Family mediation is where both parties meet with a neutral mediator in an attempt to resolve any matters they do not agree about such as how family assets are to be divided and what arrangements for any children are best.
A mediator is a neutral third party who carefully listens to both sides and assists them in exploring options with a view to the participants reaching solutions that work for them. The mediator is unable to provide legal advice but can provide information on the law. The mediator aids communication between two people who may be unable to, without the assistance of a mediator, constructively discuss issues and explore solutions.
Prior to mediation taking place, each party will attend a pre-mediation meeting. This gives them an opportunity to have a confidential discussion with the mediator and for the mediator to assess whether the matter is suitable for the mediation process. The mediator will also form a view as to whether it is safe for each party to take part in the mediation process and if it is not, they will guide them to other processes. If the mediator forms the view that the dispute and the people are suitable for mediation they will proceed to mediation.
Mediation is a very flexible process: sessions may take place in person or online by way of, for example, Zoom.
Classic mediation is where there are a number of sessions lasting between one and a half and two hours. If the participants have legal advice they will usually consult their lawyers between sessions.
If the participants are unable or unwilling to sit in a room together then shuttle mediation may work for them. In this model the mediator moves backwards and forwards between the parties. This process takes longer than classic mediation. Sometimes people start the process on a shuttle basis but move to the classic model.
Clients may wish to have their solicitors present at the mediation sessions. This is possible. It is necessary for the solicitors to sign the mediation agreement
Hybrid mediation takes some aspects from the commercial mediation model and incorporates these into the family model. Clients will have their solicitors (if instructed) present at all times. This is the only model where the mediator can keep confidences. The mediator will always check with each party what information can be shared with the other person. Hybrid mediation is often carried out in one session lasting up to a day.
The Divorce Mediation Process
In financial mediation both people must make a full and frank disclosure of their financial situations. In contrast to other information brought into the mediation this is “open”. That means it can be produced to a court if the mediation is not 100% successful. Everything else discussed in the mediation, save for one or two exceptions, is confidential between the mediator and the participants.
During the mediation, the mediator assists the couple to discuss the issues between them and to explore solutions.
At the end of a successful mediation, the mediator will prepare a memorandum of understanding reflecting the proposals the couple have arrived at. This memorandum of understanding is without prejudice (meaning that usually it cannot be shown to a court and is not legally binding). Its intention is to provide the couple with a set of proposals to take to their respective legal advisors. The couple are encouraged to take independent legal advice before they enter into a binding agreement. Ideally, the legal advisors will have been involved during the course of the mediation providing legal advice as and when needed. In financial matters a consent order will be needed to formalise the agreement reached. Where the mediation relates to children, an order is not always needed and the couple may decide to enter into a parenting plan or a simple written agreement outlining the arrangements they want for their children.
Benefits of the Divorce Mediation Process
There are many benefits of the divorce mediation process, which include:
- The process itself is very flexible as can be seen from above.
- The parties mediating are ultimately in control of the outcome, make their own decisions and a third party such as a judge does not impose decisions on them.
- Mediation is far less expensive and takes far less time than going to court.
- Mediation is not an adversarial process and this can help maintain or develop relationships. This can be of particular importance where children are involved and the parties will need to co-parent for years to come.
- Each participant is encouraged to seek legal advice about their case so they can obtain legal advice on issues that arise in the course of the mediation.
We understand that family mediation can be challenging for the parties. Our team members (which includes accredited mediators) would be happy to discuss the mediation process with you. Please call us on 020 3709 6895.
18/11/22
