What is it? How does it work? Should I go? Do I have to go? These are all questions that potential clients ask me during an initial appointment to discuss the divorce process. The answer is that the Family Proceedings Rules require solicitors to refer our clients to Mediation before we make any application to court to resolve a financial dispute or matters relating to children.
To help make sense of the rules on mediation It seemed a good idea to put together this short information piece. This is an overview and I recommend you read it in conjunction with the Resolution Guide to Mediation.
What is Mediation?
First of all, Mediation is NOT an environment to discuss the resurrection of a relationship. If you want to explore ways to get back together, you should contact Relate. Mediation is very different. Mediation is a form of Alternative Dispute Resolution, or ADR for short. It provides a forum and an environment where the emphasis is on discussing, and hopefully agreeing, arrangements for children or financial settlements. You hold these discussions with an independent third party who does not represent either side, but is purely there to be a neutral influence trying to assist a resolution.
The Mediation process is designed to remove, or at least mitigate, both the stress and confrontational nature which contested court proceedings often create. It is provided to encourage parties to focus on negotiation as a means to resolving children and financial matters.
How does it work?
As solicitors we work with many Mediators but we often refer clients to ones that we have worked with previously, and who we are confident can assist our clients. Once we have made the referral, the designated Mediator will make contact with each party and invite them to a separate Mediation Information and Assessment Meeting, or MIAM for short. At the MIAM, Mediators will explain their role, what to expect from the Mediation process. They will also discuss whether there are any factors which make Mediation unworkable or that they need to be especially aware of, such as the presence of Domestic Violence for example. If the Mediator is satisfied that Mediation can take place, they will invite the parties to attend a joint Mediation session.
The Mediator’s purpose will be to listen to both parties, and to help the parties to listen to each other, more importantly, and to then discuss solutions which the parties can see will benefit them both. It is common for the parties to attend a number of these joint sessions. It is important for both people to understand that they are perfectly able to speak to their respective solicitors between Mediation sessions – it is certainly not a mutually exclusive venture.
If the parties are able to reach an agreement within the Mediation then the Mediator will prepare a summary of that agreement for the parties to take back to their solicitors. This summary is used to prepare a formal Court Order.
Should I go to Mediation? Do I have to go?
It makes sense to deal with both of these questions together.
Mediation remains voluntary so there is no requirement for you to attend if you do not want to. However, perhaps the correct responses to the questions are:
Yes, you should go because your children need you to attend Mediation, and
If you refuse what are the likely consequences going to be?
In terms of the first response, going to Court inevitably provokes confrontation between the parties. That confrontation will, without question, permeate into every aspect of your life while those proceedings are ongoing. Most critically this will be most apparent during exchanges (conversations, messages or emails) with the other party. Often the conflicts come out at flash points such as agreements as to arrangements for seeing the children and at times when children are collected, or returned.. If this happens, it will be extremely distressing for the children.
In terms of the second response, a Mediator cannot work with reluctant participants who are unwilling to listen, or unable to engage with the other party. If someone refuses to attend Mediation, in most cases, this ensures that a matter will end up in Court for a resolution. Naturally, contested Court proceedings will involve considerably higher financial (and emotional) costs for both parties. This will quickly erode the assets and leave both parties worse off. The conflict will then define the decisions the parties make about proposals for settlement.
In closing, then, Mediation should be viewed through the prism of a team effort. It will succeed when it supports both parties and works alongside their solicitors to reach the most satisfying solution for the parties and their family.
That is not to say, however, that it is for everyone. I will often tell my clients how Mediation will work for some and not others but it is an option. I certainly recommend you discuss it with your solicitor during your initial meeting.
Here at Cotswold Family Law we will take the time to explore your options, and how Mediation may be able to assist you and your family.