Mediation is a popular form of Alternative Dispute Resolution (ADR) which assists separating parties to resolve a whole range of different types of issues. Even if an agreement is not reached it can open the lines of communication between parties, this can be of particular importance when they are co-parents.
Below we provide a number of flowcharts setting out the mediation process along with a summary of what Mediation is and how it can be used.
What is Mediation?
- Mediation is a process in which two people meet with a qualified Mediator to discuss a dispute with the aim of reaching an amicable resolution.
- The Mediator will act as a facilitator between the two parties, to assist them with discussions about their chosen topic(s). The Mediator cannot provide any legal advice to either party.
- Mediation can occur alongside legal advice with either party speaking to a Solicitor before or after a Mediation session. Alternatively, a solicitor can attend a mediation session with a client for what is known as “Solicitor Assisted Mediation”.
- Mediation can take place face-to-face or remotely. The parties attend the first meeting called a Meeting Information and Assessment Meeting (MIAM) separately.
- The parties do not need to be in the same room as one another for Mediation to take place. This is known as Shuttle Mediation. The parties remain in separate rooms and the Mediator “shuttles” between the separate rooms to facilitate discussions.
What can be discussed at Mediation?
- Family Mediation can be used to discuss any topic; it will usually relate to child arrangements and/or division of finances.
- Mediation can be used to discuss all of the disputes between the parties or can be used to deal with one specific issue. For example, if parties agree how assets can be divided, but cannot agree how certain contents should be split, then the contents issue could be dealt with in Mediation. Another example would be when the parties cannot agree on whether expert evidence is required.
- If parties attend Mediation to discuss financial matters the Mediator will ask the parties to disclose their financial position i.e. list all their assets and liabilities. This process is often not evidence based, as it would be with Solicitors, nonetheless it assists with the parties being able to reach an agreement. However, a Mediator may decide that full evidence-based disclosure is required (Forms E). Mediation would not be suitable if one party suspects the other party of not providing all of their financial information.
- There is no limitation on what a Family Mediator can assist with, as long as it is appropriate to do so. For example, people have been known to mediate on the arrangements for pets.
What are the benefits of Mediation?
- The Mediation process is usually cheaper and quicker than going through court proceedings.
- Mediation can focus on a single individual issue rather than having to deal with everything in dispute. This can help the parties make progress towards an overall agreement.
- The parties are enabled to reach a decision about their own personal matters, rather than asking the Court to make the decision for them. This enables them to retain ownership of the decision which, in turn, can assist the parties in maintaining a relationship in the future.
What happens after Mediation?
- If the parties reach an agreement on financial matters, then the Mediator will provide a Financial Statement and a Memorandum of Understanding. These can then be sent to a member of the Howes Percival Family Team who will be able to draft a Separation Agreement or the necessary Court documents. An agreement is only binding and enforceable once there is a court order setting out its terms.
- If Mediation in relation to the arrangements for a child is successful, no further action is necessary as there is not a requirement for the agreement to be placed into a Court Order, unlike with financial matters, unless there are already court proceedings. However, many clients do seek our assistance recording the agreement reached at mediation into a formal parental agreement they can refer to in the future. Some also prefer the agreement to be binding, in which case an application can be made to court.
- If an agreement is not reached, the Mediator will provide a certificate known as a “MIAM certificate” which will enable the parties to be able to initiate Court proceedings, should they wish. At this point parties either start court proceedings or look at other forms of Alternative Dispute Resolution, such as Arbitration. However, the information that has been provided at mediation remains confidential and cannot be relied upon at court.
How to find a Mediator
- Our family advisors work with numerous Mediators across the country and can point you in the direction of those we have worked with previously.
- Alternatively, the Family Mediation Council website can help you find a Mediator local to you.
If you have any questions or concerns, please contact a member of our Family Team here, who will be happy to assist you.
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.
