If you’re looking to find solutions to issues that arise from your divorce, mediation is one way of attempting to resolve your problems. From childcare issues to your financial settlement, mediation can help you to come to an agreement with your ex. So what is mediation? How does it work? And is it suitable for you? Keep reading for answers to these questions and more.
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Family mediation – what is it?
Family mediation is a voluntary resolution process that is recommended for couples when they separate to prevent and resolve any disputes involving children, finances, child maintenance or property, as well as any other issues you would expect to arise when a couple split up, such as visitation rights of both parents and sets of grandparents, for example.
The mediation is undertaken by a professional mediator who is independent and therefore neutral to both parties involved. Their place is to listen, keep the peace during meetings, offer practical and impartial advice and thereby try to bring the best form of resolution to difficult situations that may occur during family and relationship breakdowns.
How is mediation different from going to court?
Whilst most traditional divorces don’t make it as far as court (couples usually come to an agreement beforehand), if you were to go to court you are asking a judge to make legally binding decisions about your family, finances and property. This will be both expensive and time-consuming.
If you try to resolve your differences through mediation, apart from being a lot cheaper than going to court it also lets the couple remain more in control of their circumstances. Mediators are also trained and experienced in helping their clients look at things more objectively than they may have done on their own.
Is mediation compulsory?
Although not strictly compulsory, if you do happen to go to court to bring an absolute conclusion to differences arising between you and your partner, a judge will want to know if you have tried mediation first. This will not look good if you have skipped this process and gone straight to court, as mediation shows a willingness to act sensibly on behalf of the parties involved.
When is family mediation suitable or not?
Family mediation is perfectly suitable for all cases where a difference of opinion exists and a solution can be brought about if both parties are willing to negotiate and compromise towards a solution.
It is not suitable for certain extreme cases of conflict where abuse, violence or bankruptcy exists. If these cases can be proved then mediation is not necessary to end a legal relationship such as marriage or civil partnership.
Of course, for the most part, the deciding factor on whether mediation is suitable is whether both parties are open to the process and that they aren’t, for example, already locked in a battle that one or both parties won’t back down from.
How do I get started with mediation?
You need to do your own research and decide on a mediation provider that would suit your needs in terms of their proximity to you, their skills and of course their cost. Then you need to contact them and make an appointment.
Be sure to have the funding available to cover the costs of the initial MIAM meeting as well (see below for more information about MIAM).
What if my ex will not mediate?
Your ex is under no obligation to attend any initial MIAM meeting or mediation sessions if they do not want to. They cannot, however, stop the mediators from contacting them and inviting them to a MIAM and further mediation sessions.
Their response will be noted and if the case progresses to court then the ex-partner’s refusal to attend mediation will also be noted by the judge in charge when a decision is made.
What is a MIAM?
The initial meeting with a mediator is called a Mediation Information & Assessment Meeting (MIAM).
The aim of this first meeting is to explain how the mediation process will work, how many sessions are recommended for your case, how much it will cost you and if you are liable to qualify for legal aid or not, and how to prepare for the actual mediation session.
What MIAM exemptions exist?
If there is a case where somebody’s safety is at risk, such as a domestic violence or child abuse case, then mediation may not be suitable. If this case is provable with some form of evidence then the person seeking help can bypass mediation.. If the case ultimately went to court, a judge will need to see a completed FM1 form explaining why mediation is not suitable.
Other examples of mediation not being suitable would be if either spouse was bankrupt and the dispute was over finance. Also, if one spouse has gone missing or is uncontactable. If the mediator decides that mediation sessions will solve nothing then they would tell their client so.
How can I prepare for my meeting?
Start by approaching your ex-partner, if possible, and informing them that you would like to bring a conclusion to unresolved issues by attending mediation sessions and that you will be inviting them to attend. This initial step will give both parties the opportunity to start focusing their efforts on preparation for the coming sessions, if they choose to attend.
Next, write out a list of issues that need resolving and how you wish them to be resolved. Think about what your ex-partner may want and what you would be prepared to accept. This will help save time (and in the end money) in the sessions.
If financial issues need to be sorted out then you will need to fill out a financial disclosure form when you attend your MIAM session, so be prepared to produce bank statements and proof of savings and assets. The better prepared you are the quicker you can get to the issues that need resolving.
What happens in mediation sessions?
Once you have had your MIAM you will then be ready for your first mediation meeting (with your ex-partner, if they have been invited and agreed to join you). Here, yourself, your ex-partner and a trained mediator will sit down together and discuss the issues that are affecting both of you. Often there may be another mediator who has already had a MIAM with your partner, and that mediator will sit in as a representative of your ex-partner.
If the two involved parties cannot physically be in the same room as one another then each partner will sit in a different room while a ‘shuttle mediation’ occurs, with messages and responses being sent and carried from one room to the other. This will naturally incur more time and effort and will, therefore, be more expensive.
Points to Note
- Mediators cannot give legal advice or take sides.
- They are impartial and will listen to both points of view while ensuring that a safe and comfortable environment is maintained for both parties involved.
- They will always seek what is best for any children that may be involved and will suggest practical steps that could help both parties reach a suitable resolution to existing issues.
- Anything said in mediation is confidential.
Can children be involved in sessions?
If the mediators are qualified to see children or young people separately and the parents or legal guardians agree, then yes, minors may be spoken to separate to the legally responsible adults.
If the minors are aged 10 or above then the Family Mediation Council’s Code of Practice requires that they are at least offered the chance to be heard directly during mediation.
How will mediation with high conflict levels work?
As has already been mentioned shuttle mediation can be facilitated in order to keep both parties in separate rooms. Otherwise, if your case involves violence or abuse there are organisations such as Women’s Aid, Men’s Advice Line, Refuge or Citizen’s Advice who can help parties further in these extreme circumstances.
How will financial mediation work?
You will need to gather as much information as is available to you, such as what you earn, what you have, what you owe and what you need. It is also important to remember that if you attempt to solve financial issues via mediation, instead of arbitration or court, then you will retain control of what happens, whereas solving issues through arbitration or court will be far more costly and will remove any control you did have before going via this route.
What happens when mediation is over?
Typically, a Memorandum of Understanding is written up by the mediator(s) and both parties sign it in agreement to the terms discussed and agreed upon during the mediation sessions. An Open Financial Summary will be provided which will state the financial information that has been disclosed by both parties. These documents are not however legally binding but will be required by a judge as evidence if the case progresses to court.
How much does mediation cost?
Mediation costs vary across the country, as well as in the way that fees are charged. Some services charge by the hour, others by the session. Some services can apply sliding scale fees, while others can offer fixed fee packages. Cancellation fees may apply as well, so it is sensible to do your own research before committing to a specific mediator.
The costs can range from:
- Initial MIAM meeting: from £100 to over £200 + VAT
- Further sessions: from £125 to over £250 per client per hour + VAT
Some mediators will also work to a fixed total fee, though this is typically within specific parameters, such as a pre-agreed number of meetings after the MIAM.
Can I qualify for legal aid to help with the costs?
Qualifying criteria for legal aid are extremely strict and are based on your income. At present it is as follows:
- You may qualify for legal aid for mediation if you receive Income-Based Jobseekers Allowance, Income Support, Income Based Employment and Support Allowance or guaranteed credit and have less than £8,000 in capital or assets.
- If you earn more than £2,657 per month and/or have over £8,000 in capital or assets you will not qualify.
- If you stand anywhere in between then your case will need to be reviewed on an individual basis, which means that a statement of income will need to be completed for assessment.
What happens if you and your partner still cannot agree on terms?
Advice should be sought from a divorce lawyer on what to do next, but at this stage family arbitration or the traditional lawyer-to-lawyer negotiated divorce start to become likely options.
Will I need legal advice?
In very simple cases of family mediation, possibly not. However, it is always wise to at least consult with a divorce lawyer initially to fully understand your legal position before you embark on any negotiations.
If resolution starts to look unlikely during mediation or complicated issues such as property or children are involved, then legal representation may be advisable.
Will I ever need to go to court?
Most divorces do not require either party to attend court. If a case reaches court it is usually because both parties could not agree on fundamental issues, such as children and finances, or the assets being divided are of sufficient value to justify paying the costs that court brings.
Lawyer Assisted Mediation / Collaborative Law
How is family arbitration different to mediation?
A family arbitrator will make a decision on financial cases while acting as a third party. This decision is legally binding and is known as an award. It is a decision based on all relevant information and evidence that has been made available. Family arbitration may be sought before heading towards the more expensive option of court proceedings.
What is lawyer-assisted mediation?
This simply means that lawyers representing both parties are present during mediation as well as a mediator. It will be more expensive but could be money well spent if there are legal complexities.
How is this different from family mediation?
Usually, you would have one long mediation session instead of several shorter meetings. You and your lawyer may move to a separate room to your partner and their lawyer at some stage. If some form of agreement is made then everybody may rejoin again in the same room and draw up an agreement on the spot.
When is the best time to consider lawyer-assisted mediation?
Complex issues with much at stake may necessitate lawyer-assisted mediation. It can also be used as a last resort for sorting out issues that have not been able to be worked out yet and before resorting to the court for a decision to be made by a judge.
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