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Family mediation can be an alternative to going to court with the aim of settling your divorce amicably. Here we go through the most common questions surrounding family mediation and set out to answer your questions.
What are the benefits of mediation?
Unlike the court process, in mediation, you make all the decisions. Mediation is voluntary, no one can make you or your former partner come, but by choosing mediation, you are choosing to stay fully in control. Mediation is effective because you know your family best and therefore you are free to choose whatever feels right for you and your family.
If you are coming to mediation because you are separating or getting divorced, mediation is much quicker than the court process and much less expensive. Whilst every couple is different, in our experience, many mediation cases can be resolved in 2-4 sessions.
Mediation is confidential and legally privileged*. What you say in mediation cannot be used in court. This means that you are free to discuss as many options as you wish. Where mediation involves financial disclosure, this information can be placed before a court, but you will not have to prepare your documents twice. The mediator can prepare an Open Financial Statement (OFS) for you which can be used in legal proceedings.
You, your partner or the mediator can stop the mediation at any stage, either because you’d like a break, you need time to think or permanently if you feel the process isn’t right for you. Remember, mediation is about you, for you.
*Confidentiality will be broken if the safety or well-being of another adult or child is at risk
Are family mediation agreements legally binding?
Any agreement you come to during family mediation will not be automatically legally binding. However, you can apply to court for a Consent Order to make the agreement legally binding. Once your Consent Order is approved, you and the other party must comply with it. If the other party breaches the Order – for example, they don’t stick to your parenting arrangements – you will be able to take legal action to enforce it.
Can you go back on a mediation agreement?
You can go back to mediation with your former partner or family member at any time to make a new agreement.
If you have turned the agreement into a Consent Order, you can both agree to do something differently (for example, change the amount of your spousal maintenance payments). However, the change will not be legally binding unless you vary the Consent Order.
You should never just stop following a Consent Order, even if the other party won’t agree to change it, because you could have legal action taken against you. You can ask the court to vary the Order anyway or to ‘discharge’ (end) an Order that isn’t working.
Can I still Go to Court if Family Mediation Doesn’t Work?
Trying mediation doesn’t mean you won’t be able to go to court if you need to. You can even use mediation if court proceedings are ongoing – it is never too late to try to settle amicably.
Do I have to attend family mediation?
No one can force you to attend family mediation. However, for certain court applications, such as Child Arrangements Orders, the court will not consider your case until you have attended a Mediation Information and Assessment Meeting (MIAM). This is just a meeting to see whether you are eligible for mediation.
Is Family Mediation cheaper than a “traditional” divorce?
In most cases, yes. Family mediation is generally cheaper as if you can agree on the outcome then you won’t have to go through court proceedings.
What Are the Six Steps in A Mediation Session?
Your mediator will help keep the session productive, professional and on track by following six main steps:
Preparation – before the mediation process begins, each party should have planned what they need to discuss. You will also attend a Mediation, Information and Assessment Meeting also known as a MIAM meeting.
Mediator's introduction – As the session starts the mediator will lay down the ground rules, introduce the participants and outline the process of the mediation.
Participant’s opening remarks – During opening remarks, each side has a chance to present their view of the issues that need to be agreed upon without interruption.
Joint discussion – Now, with the help of the mediator at all times, the parties will discuss freely with each other and ask any questions they may have.
If private discussions are need or if emotions do run too high, the mediator can split the two sides up into separate rooms for private meetings. Anything they share in these meetings (or share in caucus) will remain confidential.
Negotiations – By the end of the mediation session, it is time to negotiate a deal. Both sides will likely have to compromise on some aspects in order for this to be possible.
Closure - This is the end of the mediation. If an agreement has been reached, the mediator may put its main provisions in writing as the parties listen. The mediator may ask each side to sign the written summary of agreement or suggest they take it to lawyers for review. If the parties want to, they can write up and sign a legally binding contract. If no agreement was reached, the mediator will reviewwhatever progress has been made and advise each person of their options, such as meeting again later or going to court.
What Is a MIAM Meeting?
Before you attend mediation, both you and your former partner will be invited to attend a MIAMS meeting. A MIAMs or Mediation, Information and Assessment Meeting will take place separately from your partner and is your opportunity to find out more about mediation and how it can help you. All other forms of dispute resolution will be explained to you so that you may make an informed decision. You will be able to ask questions and find out whether the cost of your mediation could be covered by public funding (Legal Aid). The mediator will also assesses whether they think you case is suitable for mediation. Once both of you have been assessed and agreed to undertake mediation, the process can begin.
What happens in mediation?
When you start mediation, the mediator helps you decide what it is you’d like to talk about. It might be contact with the children, money, both of these, and lots of other things. Each of you in turn will be able to say what you’d like to discuss and a list will be drawn up. It’s ok to add things to the list as you go along or decide that there are things you don’t want to discuss that you thought you did. That’s the great thing about mediation – you get to choose!
Sometimes it takes the whole of the first session to decide what’s important to the two of you. This is normal. Once the two of you have decided what you’d like to talk about, the mediator will help you decide what you’d like to discuss first, and help you open up the discussion and ensure that each of you have the opportunity to share your thoughts and feelings. The mediator may suggest options to you and help you ‘reality test’ options. ‘Reality testing’ helps you look how an option would work out, it allows you to be as creative with your thoughts and ideas as you’d like, before seeing how they work for you and your family.
As you begin to make decisions and agreements, the mediator will write these down for you. At the end of the mediation process, you may ask your mediator to record all these agreements in a document called a Memorandum of Understanding or MOU. This MOU is a record of the agreement(s) that you have made. It is not legally binding like a Court order; it is a promise between the two of you about what you want to happen. This is the end of the mediation process. If you prefer, you can have the MOU converted into a Court order – a Solicitor can assist you with this.
How long does family mediation take?
Family mediation usually doesn’t take as long as court proceedings because:
- You don’t have to comply with the court’s timetable, you can arrange your mediation sessions to fit around your own schedule.
- Once people agree to mediation, they are usually open to cooperative discussion allowing issues to be dealt with quickly.
- Lower conflict means that issues are often resolved faster.
The exact length of time mediation will take will depend on your individual circumstances. However, you may have to attend a few sessions over a few weeks to get the full benefit.
How Does Child Mediation Work?
We have a blog post detailing how child mediation works and tips for helping your children through mediation here.
What happens if my former partner won’t mediate?
From April 2014, applicants in family proceedings will be required to attend a MIAMs prior to issuing court proceedings. This is because the court feels that mediation is good for families overall.
When you’ve been to your MIAMs, your former partner will be invited to attend a MIAMs. They cannot be forced to attend however. If they don’t attend, you will be given a Form FM1 with which you can go to the court will accept as a reason to issue to legal proceedings. However, this does not necessarily mean that you lose the opportunity to mediate. The court may recommend that the two of you go to mediation, and may adjourn your case for you to do that.
Why Should You Consider Family Mediation?
Here are just some of the ways using family mediation for your divorce or family law matter could benefit you:
Stay in control of decisions for your family
Mediation means you stay in control of all the decisions you need to make. At Crombie Wilkinson, we believe that every family is different and therefore your mediation experience is always unique. We recognise that mediation can often be challenging for families and so we create a safe and supportive environment for you to share your thoughts and feelings. However, mediation is not coaching, or counselling and it is not a substitute for these services.
Find better ways to communicate with your family
Mediation may be the first time in a long time that you have felt able to say what you really think and feel about issues that are affecting your family. Sometimes when families face difficult times, it becomes hard to communicate. This might be when a relationship is breaking down and can also be when teenagers are trying to assert their independence, or you and your adult siblings having to make decisions about how to care best for ageing parents. Whatever your family issue, we can help.
Explore solutions with the help of a qualified professional
Mediation is about acknowledging differences then moving forward and seeking solutions that work for you and your family. If you get stuck, the mediator is there to help get the communication going again. If your relationship is ending or has ended, and you have children who are not yet adults, the mediation process helps to come to terms with a new style of communication in your new relationship as parents but not partners.
At Crombie Wilkinson, we encourage you to let go of your assumptions and stop ‘mind reading’. In families, it’s easy to believe that we know what other family members think and feel about certain things and often we are right. However, our experience shows that in many circumstances, this ‘mind reading’ that we all do, is sometimes not accurate. Making assumptions is a normal part of life but it can also get in the way. In mediation, the mediator assists you by supporting you to say exactly what you mean and also supporting the other person to really listen and hear what you are saying. We often find that both parties are surprised at things they hear in mediation because of assumptions that have been made. Once you are back in communication with each other, making agreements becomes easier.
Get In Touch
Learn about how Crombie Wilkinson can help you with our family mediation solicitors here.