Family Mediation has been around for over thirty years but it has really only taken hold as a well-known alternative to Court litigation in recent times. A relatively recent change in the law has made it compulsory (apart from in some very specific exceptional circumstances, such as if there is domestic abuse) for anyone wishing to make a Court application about money or their children on divorce or separation, to find out about mediation first. More couples are therefore choosing to use the process to try and achieve a resolution, which avoids recourse to the Court and the expense and uncertainty that inevitably brings.
The initial Mediation Information and Assessment Meeting, or MIAM, enables an individual to discuss the benefits of the process with a trained mediator and decide, with the mediator’s help, whether it is a process which will suit them and their case. The mediation process itself remains voluntary and therefore couples who agree to mediate, do so by choice, which gives it the best chance of success.
Family mediators are impartial and, as such, cannot give the couple any legal advice. However, there is a huge array of information which mediators can provide, which can be of immense assistance to the couple in reaching an agreement. Family mediators come from a variety of backgrounds and, as such, have a wealth of experience to share.
Family mediation is a confidential process and therefore the discussions which take place cannot be disclosed to the Court. This helps generate free and transparent debate between the couple, without fear of being held to an outcome, until they are truly ready to proceed. There are sensible exceptions to this in that any financial information must be given openly to ensure its credibility, and if there is any risk of harm to either of the couple or any children, or a breach of money laundering regulations, then the mediator is obliged to breach confidentiality and make a report to the appropriate authorities.
Any agreement reached in Family Mediation is not legally binding but the hope is that the couple will wish to see it through to the end, as they have worked hard in the sessions to arrive at a settlement they can both live with. It is relatively rare for mediated settlements to break down after an agreement has been reached. After all, the couple have kept control over the outcome and have had significant input into how their assets and income should be shared and how their children should be cared for.
A number of family mediators are also trained to consult directly with children, enabling them to meet with children and find out their wishes and feelings. This is always done extremely carefully, with the children’s and both the parents’ consent. The children then agree with the mediator what, if anything, will be fed back to the parents, thereby maintaining the children’s right to confidentiality and ensuring their voices are heard.
Clients in mediation are recommended to take legal advice, if not alongside the process, then at least at the end so that they can be sure that the proposal they have discussed at mediation is truly right for them.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.