What is Mediation?
Mediation gives separating couples an opportunity to decide for themselves what to do about their children and finances, with help and guidance from trained and impartial mediators. This is an alternative to the more traditional legal approach using lawyers and maybe eventually asking a judge to make the key decisions which will shape the family’s future.
In mediation, clients are encouraged to co-operate with one another to negotiate and find their own ways to move forward with their lives. Research shows that mediation can cost a quarter of the price and take a quarter of the time of going to court and, more importantly, it can ensure better results for families too.
Currently, many people repeatedly go to court to argue over matters they are better placed to sort out themselves – like securing 30 minutes extra contact time or varying their allocated contact days. This is expensive and emotionally draining, impacting on everyone in the family. Parents are best placed to resolve these types of issues but often find it difficult to sit down together and have conversations with each other about the children without being sidetracked into revisiting the reasons for the adults’ relationship breakdown. Mediation can help them do this.
Many couples want to sort out what to do about their finances themselves but would like professional help in doing so. Mediation can also help them do this.
National Audit Office figures on legally-aided mediation show that the average time for a mediated case to be completed is 110 days, compared to 435 days for court cases on similar issues. Mediation is also often cheaper than going to court – data from Legal Aid cases shows the average cost per client of mediation is £535 compared to £2,823 for cases going to court.
According to the Ministry of Justice, in 2013 “nearly two-thirds of couples who attended a single mediation session for a child dispute reached a full agreement. Almost seven out of every ten couples who opted for mediation reached an agreement.” (Ministry of Justice Press Release published 20 August 2014)
What issues can mediation deal with?
Mediation can be used in a whole range of situations, but the most common issues that are brought to mediation relate to a child or children and to finances and property after divorce or separation.
Here are some of the issues that Novo mediators deal with every day:
- Where children are going to live, and who with
- What arrangements should be made for the child to spend time with a parent they aren’t living with
- Communications between parents
- Handovers and managing things like phone calls, Skype, texts
- Holidays and special days (e.g. birthdays)
- Parenting plans
- Maintenance: who should pay for what, how much and for how long.
- Extended families
- Step-family issues
- Whether a child should relocate to another country, and if so what special arrangements might need to be made to protect the child’s relationship with any family staying in England and Wales.
- What should happen to the family home, including the mortgage or rental agreement, and what should happen to the contents?
- What should happen to any cars?
- What should happen to any bank accounts, building society accounts, or savings?
- What should happen to any pensions?
What do we do in mediation?
During the mediation your mediator will give you useful information about how to deal with financial issues, how to deal with children issues, relevant legal principles, the court process, court orders, and how to contact other agencies and specialists who may be able to help.
The mediator will ask you important questions about what ideas you have about the future, and about what is worrying you about the present. They may even talk a little about what has gone wrong in the past, although the problems of the past are not the main focus of mediation. The mediator will also set the rules he or she expects everyone to follow. These will include speaking and listening to each other with respect and working with the mediator to make sure that conflict and any strong emotions that emerge during the mediation don’t overwhelm the process.
Our mediators work in a relatively informal setting provide you with a relaxed and secure environment. During the session, the mediator will record key pieces of information or ideas or particular options in a way that allows both of you to see what has been written and to comment on it. Usually, the mediator will use a flip-chart to do this, but many also use more modern technology. You will be encouraged to ask questions and discuss what is being written down. If you don’t understand something that is being said by anyone in the room or you don’t understand something that has been written on the flip-chart by the mediator, it is very important to say so. It is the mediator’s job to help. Your mediator will be keeping an eye on how you are feeling, but if you start to feel uncomfortable or worried about anything, you should let the mediator know.
If the two of you are able to identify some proposals that you think might work, the mediator will record those proposals in a confidential way, for you to turn into a legally binding agreement after getting legal advice.
Your contribution to the mediation process:
- Explain your family situation.
- Set the mediation agenda. The mediation sessions are tailored to what you want and need to discuss.
- Agree on the issues that you need to discuss.
- Decide the priority of the issues. Some issues are more pressing than others and need to be resolved first, e.g., short-term financial support, holidays, contact.
- Set timescales to deal with certain matters e.g., for separation or divorce.
- Clarify the issues: sometimes it is not certain what matters are really in dispute and clarifying these avoid future misunderstanding.
- Consider whether any other specialists might be able to help you.
- Find the common ground.
- Provide/obtain information, e.g., complete a financial questionnaire or have a form explained to you. If you have financial issues to discuss, it is particularly important to make sure everyone has a very clear picture of the family’s financial situation. This involves each of you providing details about any property you own, and your income and expenditure, very much as you have to if you go to court.
- Look at the various options and reality test those options. When there are financial issues you will need to give consideration to what everyone in the family needs, especially the children.
- Arrive at the option that best suits both of you and work out the details of your proposals.
Do I have to go to mediation?
Attending a Mediation Information & Assessment Meeting (MIAM) is compulsory but if in that meeting, or sometime later, you decide not to carry on with Mediation then that’s ok. Both of you have to want to mediate, and either of you can stop the mediation process at any time.
More and more the courts expect families to attempt mediation before litigation begins, but mediation isn’t always suitable, and no-one can be required to mediate after their MIAM
How does mediation help my family?
Separation and divorce can be very emotionally challenging for children or any age. Protecting your children from the stress, anxiety and sadness that can come from splitting up always the first consideration for you and your mediatior. Children should not be part of the discussion and we shouldn’t make them feel they need decide between you.
At the simplest level, mediation helps by providing a safe environment away from the children to discuss the options available to you. Obviously, mediation does a lot more:
- Children prefer to see parents working together rather than fighting,
- Mediation promotes co-parenting and putting children first
- Mediation is less confrontational and antagonistic than legal battles
- Mediation is less stressful and it’s finished quicker
- You’re in control and you get to decide what happens
- Agreements can be as simple or as complex as you want
- Agreements made together are more likely to work
- Helps you move on with less friction between you
What happens after mediation?
At the end of the mediation process, your mediator will explain to you how to obtain legal advice about any proposals the two of you have produced together and how you may convert them into a legally binding agreement and/or a court order.
Proposals relating to children don’t often need to be turned into a court order, but proposals relating to finances almost always should be. If you have not been able to find any mutually acceptable proposals, your mediator will explain to you what your options are at this stage, including negotiation through other means, arbitration and court proceedings. Although the mediator will never instruct you to do something, they may suggest that you take further advice, for example, and that you consult with a tax or pensions specialist, or with a family lawyer, before making any decisions. Even where mediation does not succeed, it may be able to help by giving you a better idea of what your family’s real issues and options are, and by giving each of you an opportunity to hear directly from the other person involved.
At Novo Mediation we like to offer you some flexibility in how you approach mediation. Some people prefer to spend a day working through the issues and finding solutions together; in this way to process can be completed quickly allowing you to move forward. If you both plan to have a one-day session, and assuming you have completed the MIAM and prepared all the required materials, then just talk to your mediator about this option. Alternatively, you can complete the mediation over a longer period of time. This can give you time to gather the required information (disclosure) and consider the issues and solutions from previous sessions before agreeing to anything. You may also take the time to get professional input from therapists, pensions experts or solicitors in-between sessions.
This process usually involves up to 6 sessions, depending on the number of issues that need to be discussed and how complex or difficult the issues are; with each session last one and a half hours. Your mediator can help plan the first and next sessions with you so you understand how you’re progressing and what the costs might be.
Why should I try Mediation?
- Mediation provides an opportunity to assess whether there is any possibility of a co-operative outcome to your dispute.
- Mediation provides the opportunity for you to work in a positive and constructive way.
- The mediation process tends to be less confrontational and less antagonistic than the alternatives.
- Mediation helps reduce hostility and improves the chances of long-term co-operation.
- Mediation concentrates on resolving shared problems rather than allocating blame or examining the causes of the problems your family faces.
- Mediation focuses on the interests of children helping you to work together as parents, recognizing and meeting the needs of each child together even when you are no longer a couple.
- You can improve communication and look to the future, not the past.
- Mediation is less stressful for you and, indirectly, for your children.
- Mediation usually takes place face to face so you hear the other person’s words and are able to speak directly, rather than through letters and solicitors.
- You control the pace and content of mediation rather than your future being decided by lawyers, legislation or the court.
- Most clients using mediation to reach agreement have lower legal costs.
- The mediation process tends to be quicker than dealing with disputes through legal representatives and the court process.
- The mediation process allows couples to create a completely flexible and bespoke set of proposals, tailored to fit your family’s particular situation.
- The mediation process focuses on finding an outcome that both of you believe is fair to you both, rather than applying an independent measure of fairness as the courts would do.
- Even if, for one reason or another, mediation does not in your particular case result in agreed proposals, there will almost always be benefits from having attended mediation, including a better understanding of the other person’s position and identification of the real issues in the case.
- Where financial mediation is not successful, you can return to your solicitor with either partial or complete financial disclosure. This should save your own solicitor a good deal of work which means savings in time and your costs.
Even more answers…
Yes, there is shuttle mediation and co-mediation as explained below.
What is shuttle mediation?
Shuttle mediation is where we use two rooms at the same location. You and your former partner each stay in your own separate room, and the mediator or mediators ‘shuttle’ between you. There is no face to face communication between you, so it can be a good way to help clients negotiate safely. However, you should be aware that this kind of mediation doesn’t help to develop better communication in the way that other forms of mediation can. Shuttle mediation sessions usually take longer than other mediation sessions. Sometimes lawyers are involved in this form of mediation too, each person bringing his or her own lawyer and consulting with them about the options available as the mediation progresses. Sessions involving lawyers, sometimes known as caucus mediations, are more expensive and tend to take quite a long time. Our mediators often participate in shuttle mediations, and are comfortable inviting lawyers, and indeed other professionals, into the process.
What is co-mediation?
Co-mediation is very common and involves you meeting with two qualified mediators together in one room, and all four of you talking through the issues and the possible solutions together. Novo mediators are all trained to co-mediate. Your mediator will suggest co-mediation when they think it will be especially useful to have one mediator for each of you. It is very common for co-mediators to be a man and a woman, and sometimes for them to be from different backgrounds (for example one from a legal background and one from a therapy/counselling background). Obviously, this has a cost implication but your mediator will explain this to you.
With the client’s agreement, the mediator may invite other people into the mediation process if that seems helpful. For example, a pensions expert or a family therapist or other professionals invited to take part. These additional parties to the mediation might attend your mediation sessions, or they might be set up as separate sessions on their own. Our mediators are specially trained to focus on the needs of the children in the family, and will always work with you, as the parents, to do that together. Our mediators are specially qualified to involve children directly in family mediations. There are many things to think about when deciding whether or not it is appropriate for an individual child to be involved directly, which will have to be talked through by both parents, and with the mediator, but involving children can be very useful if the right preparation is done. The mediator who works with the parents doesn’t have to be the same mediator who meets with the child, so you could opt for a mediator who hasn’t qualified to see children directly, and ask your mediator to find you another mediator who is qualified to meet with the child. Our mediators understand how direct consultation with children works, even if they do not do this work themselves, and will be able to talk through the options with you.
No, the mediator doesn’t make any decisions; you yourselves work out what proposals you both think you would like to take forward. The proposals agreed through mediation will only become legally binding if you ask your lawyers to create a legally binding agreement.
At the very beginning of the actual mediation, the mediator will ask you both to sign an agreement to mediate, after checking with both of you that you understand what it says and that you both know how mediation works. The agreement to mediate is a standard document, used by all our mediators, and is something that is required by the Family Mediation Council, which regulates all family mediators. The mediation cannot go ahead unless the agreement to mediate has been signed.
Yes, the information clients share with the mediator is kept confidential but with some very limited exceptions (similar to the exceptions that apply to lawyers, therapists and counsellors). Proposals put forward during mediation cannot be referred to in court proceedings. If you try to mediate but it doesn’t work, the court will never be told why the mediation wasn’t successful.
No, the mediation process is designed to help improve communication between people who have already decided to separate, or who have already separated. It is not designed to help couples who are hoping to mend their relationship. On the other hand, two people can use mediation to discuss whether they should now be considering formal separation or divorce and, if so, what should happen next. In a number of situations, the mediator may suggest counselling or other forms of help and support, for example, if a couple wants to improve their relationship after separation or if they are now reconsidering the decision to separate.
Your mediator will make sure that each of you has an opportunity to explain what you think and feel and that each of you has the opportunity to consider all the important factors before you decide what you want to do. If your mediator believes that one or both of you should have more time to consider all the options open to you, or you need more information to understand the options, then your mediator will make sure that this happens before continuing with the mediation. We have various safeguards and checks in place to ensure that mediation sessions are carried out in the safest situation possible. Your mediator may stop the mediation if there is abuse or bullying and will do so if one person persistently behaves in an intimidating or distressing way.
No, many people find talking to their partner about what should happen after a separation or divorce very stressful and upsetting. Our mediators can give you a safe place to resolve your differences at your own pace. Mediators are specially trained to look out for any domestic abuse issues that may affect your family, and also for other problems that might make negotiation between family members especially difficult. Our mediators will not allow you to mediate if they do not believe you will be safe. We also have several rooms available to conduct the mediation and ‘shuttle’ style mediation is common. This is where you and your former partner have separate consulting rooms whilst the mediator moves between you to work towards an agreement.
No, your mediator is an independent, impartial negotiator. Many of our mediators are qualified counsellors but in the mediation room that is not their job. Our mediators usually spend some time reviewing issues from the past that are important to you but their main focus is on the present and the future, rather than on the past. Equally, mediation can be emotional and our mediators will encourage you to talk honestly about your feelings; but the main focus of mediation sessions is on practical arrangements rather than emotion. If your mediator believes that counselling could help someone in the family then they may provide information about how to book a Novo Counsellor.
Our mediators come from a wide range of backgrounds but mostly from a therapy or counselling background with experience of couples and family counselling. Some are family lawyers, or have at some stage worked as family lawyers. Sometimes two mediators from different backgrounds well work together, to combine their different specialist skills. All our FMA qualified mediators are trained to work with families in conflict and have considerable experience in helping families to work together to find practical solutions to their problems through mediation.
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