Should I Choose Family Mediation?
One question I’m asked frequently is: Should I choose Family Mediation? For some, mediation can make all the difference. Often, it’s the difference between reaching agreement and ending up in court. Mediation is less expensive than using solicitors exclusively. Mediation is quicker than using solicitors alone, and yet, it’s not for everyone.
What is family mediation?
In family mediation, mediators help you make decisions. Mediators give legal information but don’t give you legal advice. Use mediation to discuss finances, housing, arrangements for your children, and parenting. Mediation gives you with the time and space to consider your options, without the high emotion that stops you communicating effectively.
Agreements made in mediation are not legally binding. The mediator drafts a document known as an Memorandum of Understanding or MOU, setting out what you agreed. Financial agreements outlined in your MOU should turned into a legally binding Consent Order. Only a court order can finally end your legal obligations to each other in life and death. Divorce, or an agreement between the two of you, even if it’s written down does not do this.
Courts works on the ‘No Order’ principle when it comes to children. The court will only turn an MOU into a Child Arrangements Order if making the order is in the children’s best interests. The court encourages you to stick to the agreements you made in mediation. Of course, this is not always possible, and in such circumstances, the court can make an order. Depending on your circumstances, you may need to apply for a Specific Issue or Prohibited Steps Order.
Do I have to mediate?
Mediation is not compulsory for divorce. However, when applying for a court order in respect of your finances or your children, you must have at least one meeting with a family mediator. The is the MIAM (see below). There are a few exceptions to this rule – if you are affected by domestic violence, or social services are involved because of welfare concerns for a child, you may not be required to attend mediation. Many people don’t realise that divorce simply ends your marriage and it does not deal with issues relating to money or your children.
What is a MIAM?
MIAM stands for Mediation Information and Assessment Meeting. You will meet with a mediator, usually for around 45 minutes and they will discuss with you:
- How mediation works
- What your options are
- Whether mediation is likely to work for you
- The likely costs and whether you are eligible for public funding
- Whether mediation is safe for you
At the meeting, the mediator will let you know whether they think your case is suitable for mediation – not all are. It’s for you to decide whether you want to proceed with mediation. If you decide not to mediate, the mediator will give you a form to certify that you have attended a MIAM, which will enable you to continue with court proceedings.
If you decide you’d like to start mediation and your soon-to-be-ex-husband agrees after his MIAM, your first joint session will be fixed.
When shouldn’t I mediate?
If you are in a high conflict divorce and there is ongoing abuse, mediation is a bad idea. Remember, abuse isn’t only physical. Coercive, threatening, or manipulative behaviours, as well as financial control is also abusive. If there has been abuse in the past, but it has now ended, mediation might be possible. If because of the separation, or because your soon-to-be-ex-husband has undertaken therapy, and there is no risk abuse is likely to resume, you might decide to give it some thought. Speak with a trained mediator to discuss your situation.
If you are dealing with significant financial assets, mediation can be more complex, and it may be worth looking at collaborative law options or working with forensic accountants if you believe assets may be being hidden. Remember a characteristic of high conflict personalities is that they are charming and charismatic in public, so are likely to use mediation as an opportunity to exert control. In these cases, clear boundaries are in order.
Legal Aid is available for mediation if you are on a low income or claiming certain benefits. You will be assessed for your eligibility at the MIAM. You will need to provide evidence of your financial circumstances, such as payslips, national insurance number and bank statements. Family mediation can be a wise option for reaching agreements without relying on court decisions. This keeps you in control, and can help smooth communication with your ex. So, unless you are in a high conflict divorce (read more on that here), it’s worth considering mediation as part of your divorce plan. If you’re clear on what you want from divorce and post divorce life, that can help you make the most of your mediation sessions. I can help you navigate the practical and emotional rollercoaster. Just contact me to book in a call.
The Divorce Alchemist
Emma Heptonstall, the Divorce Alchemist is author of the Amazon best selling book How to be a Lady Who Leaves, the Ultimate Guide to Getting Divorce Ready. A former lawyer, Emma is a practising family mediator and founder of Get Divorce Ready the online self study and group programmes. Emma is featured on BBC Radio, The Telegraph, the iPaper and in Marie Claire Magazine. To find out more visit www.emmaheptonstall.com