Divorce and Family Mediation


date published

17th January 2017

written by

Emma Heptonstall

Emmaheptonstall.com Image

date published

17th January 2017

Divorce and Family Mediation

Divorce and Family Mediation. Does that just make your heart sink? Are you fed up of talking? Have you spent months in relationship counselling and got precisely nowhere? Are you sick of the sight of each other and frankly the idea of sitting in a room in close proximity to each other just makes you want to cry? If you feel like this, right now, I understand. You’re not alone in those feelings. It’s not many people’s idea of fun!

Perhaps you’ve just stumbled across this blog, or perhaps you’ve found it because your friend / lawyer / work colleague has told you that you should see a Mediator and inside you’re annoyed because you just want to get this divorce done! Maybe you’re here because you want to find out more about family mediation and how it can support you and you’re curious. Whatever your reason for being here, welcome!

This blog about divorce and family mediation is designed to inform you. It’s designed to give you the information you need to make the right decision for you, so before you click away thinking this isn’t relevant to your circumstances (and you might be right), read on so that you understand what you will need to do to deal with the mediation issue as you can’t just choose to avoid it, the law doesn’t work like that – sorry!

What is Family Mediation?

Mediation is a process where you discuss with your former partner any issues you may have regarding your children and or finances with the support of another person, a mediator to assist you. The mediators’ role is to support the two of you to talk, look at options, and make decisions. The mediator will not give legal advice, nor will they take sides. You can use Family Mediation before you find a family lawyer, and, if you just need to discuss children issues because you’re not married, you may not need a family lawyer at all.

Do  I have to Mediate?

Mediation is always a choice. As such, you don’t have to mediate, but if you’re the person seeking an order, you do have to see a mediator for a MIAM. If you decide you don’t wish to mediate, you won’t be forced to do so. A court may ask you why you haven’t mediated, and they may adjourn (put off) your case for you to reconsider, but you cannot be made to mediate. 

There are exceptions to the rule that you are expected to consider mediation. Firstly, if your children are the subject of Care Proceedings, you won’t go to mediation. If you have experienced domestic abuse in any form, you won’t have to mediate. 

Domestic abuse includes emotional and psychological as well as physical harm. It includes coercion and financial control. If this is you, you can find support at Women’s Aid, and other agencies. Sometimes women who have experienced abuse can, and do, mediate, but you should speak to an accredited mediator before making any decisions. Much depends on your own, and the mediator’s ability to adequately protect you. 

What is a MIAM?

A MIAM or Mediation Information and Assessment Meeting is your first contact with a mediator. They will outline the process to you and share with you costs, timescales and also alternatives to mediation such as the traditional court process and collaborative law. The mediator will undertake safeguarding checks to ensure that mediation is safe and appropriate for you. Even if you wish to mediate, the mediator will decide if that’s appropriate in their professional opinion. If mediation is unsuitable, or you choose not to mediate, the mediator will provide you with the relevant paper work allowing you to make an application to court.

Come to the MIAM with an open mind. Your solicitor may tell you that it’s a tick box exercise. Be sceptical if you receive this message without a thorough explanation. Sadly, some lawyers are anti-mediation because they don’t believe it works. Others worry that it takes work away from them. Remember, mediation will be significantly cheaper than using lawyers exclusively. 

How much will Mediation cost?

The cost of mediation varies around the country. Here in Yorkshire, mediation is on average £100 per person per hour +vat. That may sound expensive but remember your lawyer is likely to be charging you at least twice if not 3 times this figure for their time, per hour. I know of a firm in London who charge the same hourly rate for their mediation work as they do for their generally family work. The key is shopping around. Get recommendations.

I’d recommend using a lawyer mediator if you have finances to discuss. This gives you the benefit of the experience of a lawyer even though they are not acting in the capacity of lawyer and can’t give you legal advice. Lawyer mediators can and do, give you information based on their real life court experiences and on the local family courts! I wrote an article about the benefits of using a lawyer mediator. I’d also recommend that you seek out both lawyers and mediators who are members of Resolution. Resolution lawyers and mediators work to a code of conduct promoting conflict free resolutions to family breakdown.

What are the benefits of Family Mediation?

Unlike the court process, in mediation, you make all the decisions. Mediation is voluntary, no one can make you or your husband 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. It doesn’t matter what the mediator or your lawyer thinks.

The mediator, or your lawyer if you chose to get advice on the proposals put forward (always a sensible idea) will ensure that you have considered the options available and that you understand the consequences of asking a court to make a specific order.

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 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 husband 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.

How do I find a Mediator?

These days, mediators are easy to find, and Google is your friend. Many family law firms offer family mediation and if they don’t, they’ll be able to give you the details of someone who does! 

The Family Mediation Council holds a register of accredited mediators. Resolution also has a listed of accredited mediators. When you call and speak to someone, it’s likely that secretarial staff will take your call. Think about the following things:

  • Are they friendly?
  • Are they patient?
  • Did they keep you focused?
  • Did they ask if you might qualify for public funding (legal aid)? They should ask you this whether or not they have a public funding franchise.
  • Are they knowledgeable about mediation, the process and it’s benefits?
  • Are they clear about their costs?
  • Have they answered all your questions?
  • Do you feel confident and comfortable with the service they offer?

Lawyer versus non-lawyer Mediator?

There are many excellent non-lawyer mediators. Mediators come from a variety of backgrounds. Some are still practicing lawyers, others like me, are ex-lawyers. Some mediators come from a social work or counselling background and others come to be mediators out of interest!

If you have issues that predominantly relate to children such as Child Arrangements, Specific Issues and such, you may find a mediator from a therapeutic background rather than a legal one, more attractive. As mentioned above, complex finances will undoubtedly be more suited to the lawyer mediator who is experienced in dealing with these often contentious issues. All accredited mediators however are able to deal with both matters if they are trained in ‘Aim’ or All Issues Mediation. Some mediators specialise in only dealing with children cases or only dealing with financial matters. This will have a bearing on your choice of mediator. 

I’ve already started my divorce, can I mediate now?

Yes, absolutely! Sometimes coming to mediation when traditional negotiation has broken down helps move matters forward again. In the traditional legal process, you won’t speak with your husband in a room with a mediator to support you. Most of the negotiating is done by lawyers on your instructions. It’s time consuming and expensive. My colleague Chris and I are currently working with a couple who came to mediation following nearly 12 months of negotiations where no agreements had been reached. The combined legal bill so far? £24,000.

We have had 4 sessions of mediation – we expect a short 5th session to clarify their agreements before a Memorandum of Understanding (MOU) is drawn up which lawyers will turn into a Consent Order. The total cost of that mediation will be less than £4k. They only people who have benefitted from the £24k is their lawyers. But here’s the thing, this couple have worked through some emotional stuff too. Tears have been shed. Explanations and apologies given. That’s priceless when you have to co-parent.

So. How do you feel about family mediation now? 

I’m Emma The Divorce Alchemist. I support Ladies who Leave to make smart emotional and financial decisions on divorce. If you don’t have your copy yet, you can download The Smart Woman’s Divorce Guide by completing the box below. Please note, by signing up, you will receive a series of 7 emails over 28 days to accompany the Guide. You will also receive an email from me each Wednesday morning UK time with hints, tips and advice. I sometimes promote my coaching packages too – I’m sure you understand that this is my business :). You may unsubscribe at anytime.

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