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.
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.
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.
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.