At the end of a relationship, there are many practical and legal decisions to make both in the short and longer term. This could include interim matters such as the occupation of your home, if you are parents – arrangements for your children, whether there should be divorce or dissolution proceedings and, in due course, what should happen in the longer term both practically and financially. All of these are big and important issues, and it can be worrying to think about where to start.
It is very common and, indeed, advisable, to see a specialist family solicitor at an early stage to fully understand your position. As part of that advice a good solicitor will talk you through the different ways of reaching an agreement with your former partner or spouse. This could include discussions between the two of you directly, through a series of meetings, in correspondence through solicitors or, often as a last resort, issuing court proceedings. One such option is mediation, but what is mediation and is it right for your family?
At the outset of mediation, whether as part of a formal Mediation Information and Assessment Meeting (a “MIAM”) or an initial meeting, the mediator will explain what mediation is and begin a process of assessing whether mediation is suitable as a means of resolving matters for you and your family.
The following points may help clarify what mediation is, what you can expect from mediation and if it will be beneficial for your family;
- Mediation can help you and your ex-partner discuss and make decisions together in respect of both your finances and children.
- After the initial meeting, your mediator will meet with you and your ex-partner together in a series of meetings (usually 4 or 5).
- A mediator is an independent and neutral third party and even though your ex-partner/spouse may have suggested you attend mediation or see a particular mediator, they act completely independently. If you do not feel comfortable with the chosen mediator, you may suggest or agree on another.
- Mediation is a voluntary process – both participants must make the decision to be there.
- Mediation is (with some important exceptions such as where there are safeguarding concerns or illegality) confidential and without prejudice – this means you can explore alternatives without worrying that they will be brought up in court proceedings. Any financial disclosure provided in mediation is however open and will be recorded in an open financial statement which will be signed by both participants and can be referred to subsequently.
- During the mediation, you can continue to take the advice of your lawyer and often the mediator will advise you to do so if such advice will help in making decisions. A mediator cannot advise you, but can give you general legal information, if appropriate.
- Mediation is not marriage counselling. If, however, your mediator thinks you would benefit from counselling or therapeutic support whether separately or together they can signpost you to appropriate professionals.
- You may not necessarily reach a concluded set of proposals on all matters at mediation – if that does not happen it can still be of great benefit in narrowing the issues which may allow you to reach a quicker agreement at court or with the assistance of your lawyers.
- Your mediator will prepare a document at the conclusion of the mediation which summarises the decisions you have reached – this is not a legally binding document, and following mediation it is important for your lawyers to sort out the paperwork and incorporate your proposals into a binding document.
- You can discuss a variety of issues – big and small, practical, and legal – at mediation. No topic is off the table, and you are not constrained by the same boundaries you might be in court proceedings. Mediation can allow you to reach a tailored fit solution for you and your family.
- Some mediators also practice as family lawyers, however, your mediator cannot later also act as your lawyer.
- Your mediator will explain to you at the outset what the cost will be and how you will be charged for their time during the meetings and in the preparation of documents.
Claire Filer, a partner in the family team at B P Collins, is currently undertaking mediation foundation training with Resolution and after successfully completing it will be able to start undertaking mediation whilst she works towards her accreditation, so watch this space!