Will Family Mediation Help Us Stay Out of Court?
by Tamsin Caine
In 2022, Family Mediation Week runs from the 17th to the 21st January. During the week, there are many webinars held, for professionals and also for the general public, to provide more information on how family mediation can help to resolve both child and financial issues on divorce or civil partnership dissolution without the need for court.
What is mediation?
The Oxford English dictionary defines mediation as, “Intervention in a dispute in order to resolve it”. From this definition, you can begin to see how mediation might be suitable for divorce, considered here to be the dispute. The Family Mediation Council website states, “Family mediation is a process in which an independent, professionally trained mediator helps you work out arrangements for children and finances following separation.” The site goes on to say that, “The mediator will help you find a solution which works for you both and will explain what needs to happen to make an agreement between you legally binding.”
In standard family mediation, each party will speak independently to the mediator. The mediator will then meet with the couple together. The mediator will listen to the parties’ situation, talk to them about the mediation process and assess whether mediation would be a suitable route for the couple to go down. Although the mediator cannot give advice to either party or the couple, they can guide the conversation and shine a light on the sticking points.
Why might you mediate?
There are lots of good reasons to consider mediation. The first would be that mediation is among the lowest cost routes to agree your child and financial arrangements in divorce and civil partnership dissolution.
Another would be that you and your ex retain control of the decision, whereas if you progress all the way to a final hearing in court, a judge will tell you how your assets are to be split. Although it is overwhelming, most people would prefer to have a say in how their finances are divided.
Mediation enables the conversations between you both to help focus on the areas in which you can't agree, hopefully avoiding the need for ongoing animosity.
Whilst mediation isn't suitable for everyone, there are a number of options which might help you to be able to take this option. My advice would be to speak to a family mediator and see whether it might work for you.
What is a MIAM?
Often the first meeting is called a Mediation Information & Assessment Meeting or MIAM. It is the meeting held with the couple and the mediator to decide whether mediation might be suitable. It is also a requirement prior to a couple attending court. It is sometimes heard that the MIAM is just a “box ticking exercise” but this opportunity should be taken seriously as the cost savings of being able to agree your divorce without the need for court could be significant. There are circumstances where the MIAM is not required prior to making an application to court but these usually concern cases where there is evidence of domestic abuse.
Online Mediation
Although not common practise prior to the pandemic, online mediation is now part of everyday life for most mediators and looks set to continue even once all restrictions are lifted. Mediators will use video conferencing to hold the meeting, meaning that the parties are not required to be in the same room together for the meeting, which can remove some of the anxiety around mediation.
Shuttle Mediation
Where this takes place in person, the parties arrive at different times, sometimes through different entrances and are seated in different places. The mediator moves between them, relaying the conversation to help both parties to reach an agreement. This can also work online with the use of online rooms keeping the parties separate. This can be useful in case of domestic abuse, where the abused does not wish to be in the same room as the abuser.
Hybrid Mediation
Sometimes called Collaborative Mediation, in addition to the mediator, each party will have their family lawyer present. The lawyers can provide advice during the process, meaning that the individuals are supported. They can speak to the mediator and negotiate on their client’s behalf during the mediation.
Child Inclusive Mediation
There are specially trained mediators who can speak directly to the children, where mediation is being used to make child arrangements. It is set up very carefully and the comments made by the child to the mediator will only be shared with the child’s express permission. The government has suggested this is suitable for children over 10 but this depends on the individual child.
Support of Other Professionals During Mediation
In some cases, the mediator will feel that professionals, such as divorce coaches, financial planners, actuaries, tax specialists or business valuers could be brought into the process to assist. Sometimes this is done on an individual basis with just one of the parties and sometimes they will be brought into the mediation meeting to enable both parties to hear the same information at the same time (although it is worth baring in mind that two people hearing the same information at the same time may still interpret it differently). I have worked in the mediation process as both a financial neutral, with both parties, and with one party where the other is more financially aware to try to correct the imbalance in knowledge, allowing them to negotiate on equal terms.
Further Help and Information
The Smart Divorce Podcast episodes relating to mediation:
https://www.buzzsprout.com/780503/9677726 Hybrid Mediation with Sarah Manning
https://www.buzzsprout.com/780503/9845957 Hybrid Mediation for complex and high net worth with Alison Bull (released on the 21st January)
https://www.buzzsprout.com/780503/8328749 The One About Getting the Most From Mediation, a short episode with Maura McKibbin
https://www.buzzsprout.com/780503/2391716 An introduction to mediation with Maura McKibbin
Our book, “Your Divorce Handbook: It’s What You Do Next That Counts”, has two chapters on mediation written by Marcia Lister and can be found on Amazon or at www.yourdivorcehandbook.co.uk.
If we can help you in any way with your divorce, separation or civil partnership dissolution, please arrange an initial chat using the link https://calendly.com/tamsin-caine/15min.