Going to court can often escalate family a disagreement. Mediation may help to avoid this.
It only takes one party to fail to negotiate reasonably for it to fail. In the heat of a disagreement, however, it is easy for each party to get stuck on good or less good points of principle and not see a way forward. Sometimes we need an outsider to help us to see the wood for the trees and help us to move forward. Mediation can do that. In most cases the family justice system expect this to be tried before accepting an application to court.
If you are recently separated or only considering it you can use a mediator to help you sort out the myriad of problems that face you when deciding how the children will be cared for and the family finances split. In most cases the mum and dad take the initiative in arranging mediation. When preparing for mediation, consider the suggestions below.
What is mediation?
Mediation is an alternative form of dispute resolution following divorce or separation. It allows parents to reach agreements on arrangements for their children outside of litigation and the courts. It is a confidential process (apart from where there are safety concerns) which allows both parties to have their say, before working towards arrangements that are acceptable for all parties involved.
Mediation can be very effective, so long as both parties are willing to cooperate. It is beneficial in overcoming the adversarial nature of the court system, as well as being quicker and much cheaper. The Family Mediators Association estimates that whereas court costs average between £5000 - £7000 per person, private mediation generally costs around £1200, with some legal aid funding available (see 'Mediation and legal aid').
Mediation is playing an increasingly important role in the family justice system, and is a popular method for parents to try and agree arrangements for their children without recourse to litigation.
What happens in mediation?
Mediation does not dictate terms to parents. Rather, it is an impartial service which helps parents to reach their own arrangements after separation. It works under the assumption that parents, though separated, remain the most significant people in their children's lives. Participation in mediation is entirely voluntary.
It can be a relatively quick process, with National Family Mediation estimating resolution for child arrangements being agreed within 1 or 2 meetings.
Mediation usually starts with parents being interviewed separately, so that individual situations can be taken into account, and to ensure that each party fully understands the mediation process. However, mediation can be initiated by a meeting with both parents, if preferred. Mediation is not possible unless both parents are willing to attend meetings together eventually, since the service is based upon conflict resolution through parental cooperation.
Is mediation right for me?
Mediation can be hugely beneficial to parents experiencing difficulties in reaching their own arrangements after separation. It gives time and space to both parties in a neutral environment, and the assistance of a trained mediator can provide the right conditions for parents to be able to resolve their disputes amicably.
Mediation is not suitable in cases where there are allegations of domestic violence or abuse.
How to Make the Most of Mediation
Before making an application to court it isn’t mandatory to try mediation, just to consider it, by making an appointment with an accredited family mediator for a MIAM (Mediation Information and Assessment Meeting). A search for accredited family mediators is available through the Family Mediation Council.
The MIAM interview will decide if you qualify for legal aid and if the differences between you and your ex and be resolved my mediation. The first issue to be discussed should be the care of the children, followed by financial arrangements.
- Consider keeping any big issue as far down the conflict ladder as possible. You know your children best. Can you sort out arrangements between yourselves or with the help of a trusted friend or family member?
- Where possible, aim to separate finance and children issues.
- It helps to try mediation as early as possible in the process, before the exchange of solicitors’ letters or mention of court.
- If you take legal advice try not to listen to only what you want to hear. It also helps to anticipate what likely advice would be given to the other parent.
What happens if my ex won't turn up to the MIAMS?
You will need to attend on your own. You ex may attend separately.
If you are attending a sole MIAM (ie without the other parent) you can ask to have a friend or family member to accompany you.
Advise the other parent to expect communication from the mediator.
The Pre-application Protocol (PAP)
Since 6th April 2011, the Pre-application Protocol (PAP) requires separating couples looking to proceed to court to consider with a mediator whether the dispute could be resolved through mediation.
Some types of case, such as those involving domestic violence allegations and emergency hearings, are exempt from this.
No party is required to mediate, but parents are asked to attend a meeting to learn more about mediation. This usually takes places through a Mediation Information and Assessment Meeting (MIAM). This allows both parents to make informed decisions about how best to proceed in disputed cases, and provides an alternative to potentially costly and lengthy litigation.
How do I prepare for the mediation with my ex?
Make sure you have ‘authority to settle’ i.e. can you make decisions in mediation without having to check with someone else?
Prepare emotionally for the session. How are you going to cope? What are the likely flashpoints? Discuss ‘time out’ arrangements during the session in advance. To help you, think what advice you would give to a friend about how to handle the session?
Prepare to negotiate. Think about what you would like – now think about what you are prepared to settle for. Are all your issues of equal weight? What can you offer?
What will happen during my mediation?
You may be dreading being in the room with the other parent but remember the dynamic can be very different with a professional in the room.
- Be creative, make suggestions and be prepared to listen.
- Try not to go back over the past or rehearse old arguments.
- Think about use of language: ‘our’ children, using the other parent’s first name. Be respectful of your child’s other parent. These may appear obvious points but they can make a big difference.
- Quit when you’re ahead. Bag small agreements.
- Try a short-term arrangement initially and ‘road test’ any arrangements.
- Being the first to make a concession or an offer is not a weakness but supportive of the process.
- Not all mediation sessions are the same.
- The time between sessions, ‘thinking time’, can be very helpful to the process.
- If you have contact outside the mediation sessions it helps to avoid discussing what is happening in mediation.
- Don’t try to get the mediator on side. Most mediators do not have contact with clients between mediation sessions. All mediation takes place in the room.
Mediation and legal aid
The Legal Aid, Sentencing and Punishment of Offenders Act (LAPSO) 2012, which was implemented in April 2013, drastically reduced the scope and availability of legal aid in private family law cases.
However, legal aid is still available for mediation. Eligibility for this is dependent upon your individual income and capital. You can find out more information about eligibility for legal aid for mediation here.
Mediation can be privately or publicly funded, though some mediators may only work with privately funded clients.
Publicly funded mediation may entitle you to attain assistance from a solicitor without statutory charges, if you are undergoing mediation at the same time.
To find out whether you are entitled to funding for mediation from the Legal Aid Agency, you can arrange an assessment with a legal aid mediator, or phone the legal aid helpline on 0845 345 4 345.
What happens after Mediation?
- You will produce a written agreement called a 'Memorandum of Understanding'
- Your agreement can be given legal effect if you feel this is necessary by submitting it to the Family Court for a Consent Order (Form C100)
- Remember you can return to mediation at any stage.
- Arrangements will need reviewing and updating. How will this happen? Have you got arrangements in place to return to mediation if necessary? If possible agree that it only requires one of you to request a review for this to happen.
- Try not to put others off mediation. Each case is unique. Your experience is not theirs.
- Even if mediation is not successful think about what has been gained.
For further information:
From the Judiciary see Mediation Guide for Judges (May 2014)
Also see the Family Mediation Council.
The Ministry of Justice has a mediator database which allows you to search for mediators by speciality (children, finance, etc.), and to filter searches to find those who can do legal aided work. This can be accessed here.
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