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Why Child-Inclusive Mediation Matters More Than Ever for Separating Parents

Sarah Hawkins
Sarah Hawkins
CEO
National Family Mediation (NFM)

When parents separate, the focus understandably turns to their children – how they’re coping, what arrangements will work, and how to protect them from unnecessary distress.

But research – and increasingly, national guidance – points to one clear truth: it’s not separation itself that has the greatest impact on children. It’s how that separation is handled.

So important is this issue that the Children’s Commissioner for England, Dame Rachel de Souza, has recently written directly to parents going through divorce – urging them to minimise conflict and prioritise their child’s experience throughout the process.

What the Children’s Commissioner Wants Parents to Understand

In her letter, Dame Rachel highlights that:

  • It is not separation itself, but exposure to conflict, that most affects children’s wellbeing
  • Children are particularly harmed when they feel caught in the middle or pressured to take sides
  • Feeling heard and respected during family changes can make a lasting positive difference

She also makes an important point: while court is necessary in some situations – particularly where safety is a concern – many families can and should consider resolving issues outside of court.

Because when children feel that parents are “fighting for them,” it can unintentionally leave them feeling responsible for the conflict – something that can affect their wellbeing long after the legal process ends.

The Shift Away from Court

This reflects a wider shift across the family justice system.

Courts are increasingly encouraging parents to resolve matters amicably wherever possible – and the reality is that most families do not need to go to court to reach workable arrangements.

That’s where mediation comes in.

Rather than having decisions made by a judge – who may only see a limited snapshot of family life – mediation supports parents to make decisions together, in a calmer and more constructive way.

And for many families, Child-Inclusive Mediation (CIM) is becoming an important part of that process.

What Is Child-Inclusive Mediation?

Child-Inclusive Mediation gives children the opportunity to have a voice – safely and appropriately – within the mediation process.

This doesn’t mean asking children to make decisions or choose between parents.

Instead, it allows them to:

  • Share how arrangements are affecting them day to day
  • Express what’s important to them
  • Feel listened to during a time of significant change

A specially trained mediator speaks with the child privately, and any feedback shared with parents is done carefully, neutrally, and with the child’s consent.

Why Hearing Your Child’s Voice Can Change Everything

Parents naturally want to do what’s best—but without direct insight, it’s easy to misinterpret what a child is experiencing.

Through CIM, children often share things they haven’t felt able to say before – about school, routines, or emotional pressures.

That perspective can be powerful.

“Children don’t need to be put in the middle to be heard. When done properly, Child-Inclusive Mediation gives them a voice without giving them responsibility.” – Sarah Hawkins

It can help parents move away from positions of disagreement and toward solutions that genuinely support their child’s wellbeing.

Keeping Decisions Out of Court—Where Possible

For many families, mediation – and CIM in particular – can help avoid the need for court altogether.

Court proceedings can be:

  • Lengthy and costly
  • Emotionally draining
  • Determined by a judge with limited time and limited insight into your family

While judges play a vital role, they cannot fully understand the day-to-day realities of your child’s life in the way you can.

Mediation creates the space to explore those realities – and to reach agreements that are more personal, practical, and sustainable.

A Common Misunderstanding

As more families are encouraged toward mediation, there is still some confusion about what it involves.

Mediation is not the same as court:

  • It is confidential
  • Mediators do not make decisions or recommendations
  • No reports are written for a judge

This independence is what allows both parents – and children – to speak openly and honestly, without fear of repercussions.

Supporting Families to Choose Mediation

Encouragingly, support is available to help families access mediation early.

The Government’s Family Mediation Voucher Scheme offers up to £500 towards the cost of mediation.

Since its launch, it has helped tens of thousands of families reach agreements around children, finances, and housing – without escalating matters through the courts.

At NFM, we see this as a proven and cost-effective way to support families at a difficult time – reducing conflict and helping parents move forward constructively.

Final Thoughts: Putting Children at the Centre

Separation is a significant moment in a child’s life – but it doesn’t have to be a damaging one.

What matters most is how parents navigate the journey.

Child-Inclusive Mediation supports families to:

  • Reduce conflict
  • Keep children out of the middle – but still heard
  • Make decisions together, rather than having them imposed

As the Children’s Commissioner makes clear, children benefit most when they feel safe, listened to, and protected from adult conflict.

“Most parents don’t want to fight – they want to find a way forward that works for their children. Mediation helps make that possible.” – Sarah Hawkins

If you’re going through separation, it’s worth considering not just what decisions need to be made – but how you can make them in a way that truly supports your child.

About Sarah Hawkins

Sarah Hawkins is the CEO of National Family Mediation (NFM), the largest provider of family mediation services in England and Wales. A passionate advocate for conflict resolution and family wellbeing, Sarah has over 20 years of experience helping families navigate the emotional and legal challenges of separation and divorce.

📍 www.nfm.org.uk | 📧 info@nfm.org.uk | 📱 @FamilyMediationNFM

Mediation, Arbitration, Collaborative Law, or Court? Choosing the Best Option for You
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Mediation, Arbitration, Collaborative Law, or Court? Choosing the Best Option for You

Nicki Mitchell
Nicki Mitchell
Partner
Jones Myers

Sponsored post by Jones Myers.

As an experienced Family Law Mediator and Collaborative Family Lawyer with extensive expertise in litigation, I understand the challenges facing separating couples in finding the right way to divorce for their individual circumstances.

The trepidation of a prolonged, costly and stressful court divorce is prompting an increasing number of  couples to seek out routes such as mediation and collaborative family law which avoid going to court. 

Another option is arbitration where separating couples hire a ‘private judge’ to accelerate the outcome of their financial settlements. 

Known as Alternative Dispute Resolution – because they provide alternatives to litigating in court – these three options put children’s best interests first. They also promote a spirit of spirit of collaboration for spouses and parents to achieve the best solutions.  

I hope the insights below will help you to decide which is best for your unique situation.   

What is mediation?

Mediation is a means of resolving family disputes constructively. It enables you to keep  control over  decisions which will  affect the future of you and your family.  In  the court process you hand those decisions over to a judge, who does not know you or your family and knows nothing about what is important to you. Mediation is appropriate for most situations including the most financially complex. 

Who is involved in mediation?

The private and confidential process takes place in a safe, impartial environment and involves a mediator like me, an independent third party who helps you and your ex to reach an agreement over key areas.  At the outset both of you sign an Agreement to Mediate so negotiations can continue on a ‘without prejudice’ basis. 

The number of discussions/sessions varies for each couple depending upon the complexity of the split. As a facilitator, the mediator assists, guides, and helps you to move dialogue forward.  

Many mediators, myself included, are lawyers and can provide extremely useful information about the law to inform your decisions. 

Whether or not they are legally qualified, mediators will recommend that you each  retain  your own solicitor who can provide specific legal advice where required during the process.

What does success in mediation look like?

A successful outcome in mediation can mean many things.  Many couples choose the mediation process to get to an agreement which is formalised in a binding Court Order. 

Often called a Final Order, this is a legal document which officially terminates your marriage without you having to go to court.  However, mediation has many other advantages, including developing a new way of communicating as separated parents. 

Is mediation compulsory?

No. Mediation is a voluntary process. You may have read about a Mediation Information and Assessment Meeting (MIAM) meeting, usually relating to cases involving finances or children, which all divorcing couples are expected to attend before court proceedings are issued. 

These meetings are designed to inform  you both about alternative resolution schemes and to establish if the circumstances are suitable for mediation.

What are the advantages and disadvantages?

Mediation can result in a swifter resolution, reducing legal expenses which mount up in prolonged court cases between warring couples. Highly confidential, it is a more impartial and considered approach and can lessen the emotional impact of separation and divorce on children. 

What happens if mediation fails? 

Due to its voluntary nature, talks can be concluded at any time if headway is not made. However, there are many ways in which the process can be adapted to get over sticky issues and avoid failure.  

There is an increasing trend towards lawyers being present in mediation sessions to provide technical advice and support during the process, in particular where there are complex legal issues.  

Alternatively, disputed legal points can be determined by bringing in a neutral lawyer to give a view or even an arbitrator to give a binding decision on a particular issue.  All of this can be done in the context of mediation.

What is collaborative family practice?

In collaborative family practice separating couples make a commitment to avoid the court route and to work together with specially trained lawyers to make their own decisions about the future. 

Like mediation, it champions a spirit of collaboration and compromise, is entirely confidential – and puts children’s needs at the heart of discussions.   

How does it work – and who is involved?

You and your ex each appoint your own collaboratively trained lawyer and undertake a series of meetings where you all work together to identify, address and resolve financial, parenting and other key issues.   

Collaborative family lawyers  provide support and legal advice throughout the sessions. Accountants, independent financial advisers, pensions advisers and/or childcare specialists can also attend and provide guidance on a neutral basis. You have as many or as few meetings as are necessary to resolve the issues between you.  

At the outset you, your collaborative lawyers and other specialists involved, sign a Participation Agreement that commits all of you to strive to reach resolutions without going to court. 

The agreement  prevents your collaborative lawyers from representing you in court if the collaborative process fails, ensuring everyone is wholly bought into making the process work.    

What are the advantages and disadvantages?

Like mediation, collaborative family  practice puts you and your ex in the driving seat so you can progress the sessions at your own pace, working around your respective work and family commitments. 

Faster, less stressful and more cost effective than going to court, it ensures that everyone involved is committed to achieving a solution. In times where transparency is encouraged in the family courts and journalists can attend hearings, collaborative practice guarantees your family’s privacy.

What happens if a successful outcome is reached

Once an agreement is reached, your lawyers will put it into effect, obtaining a formally binding Court Order without you having to go to court. 

What if talks break down?

At any time during the sessions either of you can terminate the process through a Formal Notice of Withdrawal if you feel no headway is being made. Again, as in mediation, failure can be avoided with the right support, including where necessary, an early neutral evaluation or arbitration on disputed legal issues. 

What is the difference between mediation and collaborative family practice?

In mediation, family mediators are neutral – they cannot give advice to either party as their role is  to facilitate discussions.

This differs from collaborative family lawyers who can advise those they represent at the same time as conducting the negotiations. As highlighted above, collaborative lawyers sign up to an agreement not to go to court, which provides a positive investment in the process for the whole team.  

What is arbitration?

Arbitration is a private court hearing where divorcing couples take on a ‘private judge’, officially known as an arbitrator, to achieve a resolution to their financial settlements.  

How does it work?

Like mediation and collaborative family practice, this option, also conducted in a safe and confidential environment, can avoid a prolonged, expensive and, potentially, public court hearing.  

Similar to a judge, the arbitrator hears evidence from both of you, collects relevant facts and bases their decision on the evidence, considering the views of you both.  

The arbitrator then makes an Award over who should have what which is final and binding.

What are the advantages and disadvantages?

Divorcing couples have the same arbitrator through the process, something which  rarely happens at court where different Judges are involved at different stages of the proceedings.

Quicker, confidential and more flexible than a court option, there is a substantial cost saving when delays are avoided. Divorcing couples set and agree their own timetable at the outset. 

If an arbitrator is to be used, this is something which must be agreed. There is no power to compel anyone to arbitrate. Also, arbitrators have no power to secure disclosure from third parties such as accountants or financial advisors or instruct them to present evidence at meetings.      

Can couples involved in a court divorce opt for arbitration?

Yes. Court rules give judges the power to halt court proceedings to give you both the opportunity to resolve the dispute through arbitration or indeed any other form of NCDR.

In what circumstances do couples choose a court divorce?

This largely depends on the advice which couples receive. Whilst most lawyers will explain all the dispute resolution options to clients, some, who may perhaps have less or no experience of NCDR, are more inclined to recommend court applications.  

The court process has its place. A Judge has the power to compel the production of financial information, ultimately by sending someone guilty of non-disclosure to prison. The court can also order third parties who hold information relevant to the case, for example accountants and other advisers, to provide information. In extreme cases a court can make orders without any engagement from one of the parties. 

What does a court process entail?

Before an application can be made to the court for a Financial Order an application must have been made for a divorce or dissolution of a Civil Partnership.  The various steps required to get a divorce can be found on the Government website.

As outlined above, before a court application can be made for a financial or children order, every divorcing couple must also  attend a Mediation Information and Assessment Meeting

A financial application will involve the exchange of full financial disclosure followed by a series of up to three main court hearings.   

What are the pros and cons of a court process?

The role of the court is to encourage parties to make agreed decisions about their finances and children and, in default of agreement, to make binding decisions for them 

Court orders, whether made by agreement or imposed by a Judge, are legally binding and enforceable. 

There is no privacy in a court divorce, where the proceedings are open. Since 2023 journalists have been able to report in family law courts on cases which include the wellbeing and future of children whose parents are divorcing.  

Couples are appointed a judge, who is unknown to them, and who makes vital decisions on key issues about their future.  Continuity is not assured with different judges often involved in the proceedings.  

Court hearings can be costly, stressful and time consuming. They can heighten conflict between the couple and run the risk of a case being adjourned or unfinished due to pressure on court time or a judge becoming unavailable.

The duration of a court divorce can vary significantly from a few months to years if the divorce is contested. 

The breakdown of a marriage invariably leaves those involved emotionally and physically drained and few couples take the decision to separate and divorce lightly

Knowing where to start on this critical path, which will impact on the future of all involved and affect the wellbeing of children involved, can seem overwhelming.  

Whichever route you take when embarking on divorce, it is critical that you secure the best possible legal advice.

I cannot emphasise enough the importance of working with highly experienced family law professionals like Jones Myers who are members of family law group Resolution and have a strong track record in their respective fields.   

Because we understand that every case is different, our family law experts, who are leaders in their field, deliver a bespoke service, outlining options and offering legal and practical advice at every stage to help them make informed decisions.

Read more articles by Nicki Mitchell.

Read more articles by Jones Myers.

About Nicki Mitchell

With over three decades of experience in family law, Nicki specialises in the financial aspects of relationship breakdown – and particularly complex cases involving family businesses, multiple properties, and complicated pension arrangements.

A skilled Mediator, Child Inclusive Mediator and Collaborative Family Lawyer, Nicki champions Alternative Dispute Resolution processes which avoid a lengthy court process and can lead much more quickly and cost effectively to a successful resolution.

Her exceptional track record also includes advising clients on the more traditional methods of resolving issues surrounding family breakdowns. Nicki.mitchell@jonesmyers.co.uk

Steering Conflict Through the Compass of Mediation
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Steering Conflict Through the Compass of Mediation

Lucy Adams
Lucy Adams
Senior Associate
Knights

Government-incentivised shifts to non-court dispute resolution have ushered in a new era for families, presenting mediation as a viable option for resolving complex family issues such as divorce. Here, Lucy Adams, a trained family mediator and senior associate at UK top 50 law firm Knights, delves into the evolving nature of mediation, examining how the process has transformed over the past year — from a mere formality to a serious alternative to litigation for resolving disputes.

While it may yet be an extraneous concept for some, at its core, mediation is built on the simplicity of collaboration and conciliation. Unlike the adversarial nature of litigation, where outcomes are imposed by a judge, mediation prioritises dialogue and mutual agreement. With a neutral mediator facilitating and driving discussions, the process of mediation is designed to resolve disputes to the (relative) satisfaction of both parties, helping them reach resolutions tailored to their unique circumstances at a lower cost than full litigation proceedings, and in most cases, with more favourable outcomes for all involved.

Decision-making rests with the participants

The process relies on impartiality, the key distinction between a mediator and a solicitor. While solicitors are hired to advocate for their clients only, mediators focus on guiding both sides to a mutually desired agreement. The process is confidential and designed to empower families, retaining the power of decision-making firmly in their hands rather than surrendering control to a judge. And in fact, numbers show that 69% of cases resolve all or some issues, helping parties avoid court altogether.

The rising waves of mediation

It’s important to note that many with disputes, whether it be marital breakdown or other family issues, the core breakthrough in mediation can be as simple as an apology or gesture of acknowledgment from one individual to another. Mediation is the breeding ground for this to be delivered in an environment that is less stifling than the courts, acknowledging the emotion attached to issues such as divorce.

In recent years, the government has been actively promoting mediation as a means to alleviate the burden on family courts, which has coincided with legislative shifts to ensure Mediation Information & Assessment Meetings (MIAMs) are more than just tick-box exercises. These are the first compulsory step in setting the scene for what we know as non-court dispute resolution (NCDR), a process that mirrors the court process outside its walls.

From here, a mediator will have fairly definitive guidelines that will allow them to assess the idiosyncrasies of varying disputes and set in place suitable processes for mediation to take place.

In helping parties resolve their disputes outside of court, the Ministry of Justice (MoJ) has extended a government-funded voucher scheme, offering up to £500 toward mediation costs, now running until March 2026, as a way to ease financial barriers and make mediation more accessible to a wider audience.

Exploring the many facets of mediation

A voluntary and confidential process, mediation can be tailored on a case-by-case basis. Shuttle mediation, for instance, allows parties to remain in separate rooms while the mediator moves freely to facilitate discussions. This format can similarly be conducted online, providing accessibility for individual circumstances and day-to-day arrangements. t may also be a critical first step for issues like divorce, which can be upsetting to discuss face-to-face, or particularly where children are concerned.

For more complex cases, hybrid mediation, on the other hand, at the advice of the mediator, invites in additional participants, such as solicitors, financial advisors, or even therapists, to ensure agreements are legally sound or financially viable. Child-inclusive mediation also gives children a voice, enabling parents to make decisions that prioritise their well-being, particularly where family units have broken down.

Unlike the black-and-white outcomes of court rulings, mediation explores the nuances of each family’s situation. This creativity often leads to solutions that feel more personal and balanced, with the mediator having the insight to work through the case and consider aspects which may sometimes get overlooked at court.

Mediation benefits

Alongside its flexibility, mediation is considerably more cost-effective than traditional court proceedings, with expenses split equally between parties. Secondly, it is generally faster, often resolving disputes within weeks rather than the months or years litigation can take.

Beyond the practical benefits, mediation fosters a collaborative environment that helps preserve relationships, particularly when children are involved. By addressing both immediate concerns and long-term goals, mediation lays the groundwork for better outcomes and reduces the likelihood of future conflicts.

Mediation is particularly effective in disputes involving complex family dynamics, such as disagreements over finances, business assets, or pensions. It creates a space to address not only critical matters but also subtler emotional issues that might otherwise be overlooked in court. However, it may not be suitable for every situation, predominantly those involving severe domestic abuse, abduction, or bankruptcy, for example, which may require alternative interventions.

The hopes of a new treaty defining the future of mediation

The future of mediation is looking bright. Recent updates to family procedure rules now require courts to demand explanations for why mediation wasn’t pursued before litigation. This shift reflects a broader recognition of mediation’s effectiveness.

New methods such as hybrid mediation are likely to take the helm in addressing rather more complex cases, balancing out the flexibility of mediation with the expertise of legal and financial professionals. As stereotypes around mediation versus court litigation continue to diffuse, the potential of the former to transform how couples and families navigate dispute rises, thus helping individuals move through divorce in a legal, sensitive, and balanced manner.

About Lucy Adams

Lucy is a Senior Associate solicitor in the Family team. Lucy is also a trained Family Mediator.

Lucy is renowned for her expertise in both financial matters and child law.

Lucy has obtained the Law Society Advanced Accreditation in complex financial settlement and children cases. Lucy is also a Member of Resolution and committed to the constructive resolution of family disputes.

With over 15 years’ experience in family law, Lucy can support clients with the resolution of their divorce and on related financial issues including pensions, businesses, and pre-acquired marital wealth. She also supports cohabiting couples, who need help to resolve a dispute following their separation.

As a trained family Mediator, Lucy can offer a bespoke mediation service to assist in any children or financial disputes. The sessions can either be remote or face to face at one of our 23 national office locations in the UK. Mediation is a means of resolving disputes in an amicable, non-confrontational manner that meets the needs of both participants. Mediation can often be a quicker, more amicable, and less stressful process than the more traditional route at resolving disputes, such as going to court. Lucy is registered with the Family Mediation Association.

About Knights

Knights is one of the fastest-growing legal services businesses in the UK, delivering high-quality services to more than 10,000 business clients from 26 offices nationwide.

Knights is ranked within the top 50 UK law firms by revenue – with specialists in all key areas of corporate, real estate and commercial law. Its extensive expertise is consistently strengthened through its acquisitions and the recruitment of high-calibre talented professionals.

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Family Mediation Week: All the Ways Mediation Can Help During Divorce

Gayle Rowley
Gayle Rowley
Partner, Solicitor & Mediator
Nelsons Solicitors

This Family Mediation Week (27th Jan – 31 Jan), partner and specialist family lawyer Gayle Rowley is discussing why mediation has become such a popular choice and the benefits it can bring to separating couples.

Although mediation has been around for years, with celebrities such as Tom Cruise, Britney Spears, Jude Law, and Adele all having opted for mediation to resolve their marital disputes, in recent years there has been a rise in using this option to preserve relationships between couples and their wider families.

Gayle, who last year received a full accreditation with the Family Mediation Council, recognising her specific training and commitment to this area of non-Court dispute resolution (NCDR), said: “Every January marks the renewal of discussion around divorce day, with headlines citing ‘the surge in marriage breakdowns’ or ‘the top reason for splitting up’. Headlines like these don’t always tell the whole story, and it’s important to focus on how divorce and separation can be handled in a more positive way.

“Mediation offers divorcing couples a chance for a win-win resolution that involves spending less time and money – allowing them to feel truly empowered in their decisions.

“We have seen an influx of mediation enquiries recently and mediation has certainly become more popular and a way to avoid costly and stressful court proceedings in the right circumstances.”

Family Mediation Week aims to raise awareness of the benefits of mediation and encourage separating couples to think of mediation as a way of helping them to take control, make decisions together and build a positive future for their family.

Mediation allows more open and honest discussions, as proposals put forward during sessions cannot be revealed in Court.

For many, mediation is often recommended when children are involved, to ensure couples are prioritising the wellbeing of their children during this time.

Gayle added: “Mediation is better for children. The process can be significantly less traumatic than for couples who end up in court as it promotes better communication and reduces conflict, while prioritising what is best for the whole family. It also helps avoid larger legal bills, which will be vitally important for most families.

“Courts are still exceptionally busy. Clients can expect a divorce and financial proceedings to take anything from six months to 18 months or more, whereas mediation can help to bring a resolution in as little as a few months.

“Perhaps most importantly, mediation puts the control into the clients’ hands. Going down the litigation route eventually leads to a decision from a judge, meaning one or in fact both parties may end up with an outcome that they do not want, having spent a considerable amount in legal fees.”

About Gayle Rowley

Gayle is a Partner, Solicitor and FMC Accredited Mediator at Nelsons Solicitors. She qualified as a Solicitor in 1997 and worked in our team from 2001 to 2013, and then re-joined the team in December 2020, following our acquisition of Glynis Wright & Co.

Gayle specialises in family law, advising and mediating divorce and separation cases, often involving complex financial settlements. Gayle also advises and mediates in relation to private children law matters, including the resolution of children arrangementsparental responsibility and specific issue orders, and prohibited steps orders

Family Mediation and ‘MIAMs’: Recent Rule Changes. Young people sitting in a circle and having a group discussion.
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Family Mediation and ‘MIAMs’: Recent Rule Changes

Emma Alfieri
Emma Alfieri
Legal Director
Greene & Greene Solicitors

Mediation Information and Assessment Meetings (MIAMs) have been compulsory in Family Court proceedings since 2014.

MIAMs – What are they?

‘Mediation’ is a method of resolving disputes through an independent third party, known as a mediator. Their purpose is to assist parties in negotiating a settlement.

MIAMs are a meeting which considers and explains the potential benefits of mediation and other non-court dispute resolution (NCDR) methods. During this meeting, the mediator will provide an indication as to the method that would be most suitable to resolve the prospective applicant’s particular dispute. If you are looking to apply to the court to settle your divorce or separation issues, it is a legal requirement that you first attend a MIAM.

The Rules – What’s changing?

  1. MIAM Exemptions:

The courts are looking to update their rules around the obligations to attend a MIAM, and, from 29th April 2024, they will be introducing various changes to reflect this.

If a MIAM exemption applies, then a prospective applicant will not be required to attend a MIAM.

Previously, an application for a MIAM exemption could be accepted in the absence of any supporting evidence. The new Rules, however, require said evidence to be attached to the application.

The courts will make an initial inquiry into whether the exemption is valid, and this will be subject to an ongoing review. If an exemption is deemed invalid, the court may direct parties to attend a MIAM, and possibly adjourn proceedings for that purpose.

In these circumstances, parties are encouraged to engage with the MIAMs because the court will take parties’ conduct into account when considering whether to make an order for costs in relation to the proceedings.

Why?

A stricter approach to the MIAM exemptions means that it will be harder to avoid a MIAM. You may be asking, what are the benefits of this? Well, by exploring NCDR at an early stage, you might be able to (amicably) reach an agreement, and avoid both the time and money involved in issuing court proceedings. Early resolution can also aid in preserving relationships; this may be particularly important in cases where co-parenting is involved.

What else?

April 2024 also brings with it a new MIAM exemption. If a prospective applicant can provide written evidence that they have attended a NCDR process within the 4 months prior the date of the court application (in relation to the same, or substantially the same, dispute to which the proposed court proceedings relate), then an exemption applies. This will ensure that prospective applicants are not unnecessarily directed to attend a NCDR. ‘Written evidence’ is obtained once a NCDR provider has confirmed that the applicant has attended.

  1. An insight into parties’ attitude:

From 28th April 2024, the court is introducing a new Rule for those commencing either financial remedy proceedings or private law proceedings related to children. Applicants who fall within the relevant criteria must now file with the court, and serve on all parties, a form setting out their views on using NCDR as a method of settling.

Why?

The court has introduced this requisite to monitor and identify whether NCDR is a suitable alternative for parties. Requiring parties to record their views about NCDR on paper will encourage them to think outside of the box (or indeed the court room) and consider whether a resolution can be achieved through other means; the benefits of which have been briefly discussed above.

What can divorce experts do?

As well as supporting you in your Family Court proceedings, divorce experts can refer you to accredited mediators that are recognised by Resolution and the Family Mediation Council, to ensure you have the best chance of success at mediating your dispute.

This is only intended to be a summary and not specific legal advice.

Read more articles by Emma Alfieri.

About Emma Alfieri

Emma Alfieri is a Legal Director at Suffolk firm Greene & Greene Solicitors.

Emma advises on all aspects of family law, including divorce and associated financial matters, disputes between cohabitants and child related disputes.

A member of Resolution, Emma is committed to resolving disputes as positively and agreeably as possible whilst also being motivated to obtain the best possible outcome for her clients.

Since 2012 Emma has been consistently recommended by the Legal 500 on an annual basis and in the most recent 2024 edition Emma is ranked as a “rising star”.

As an advocate of fault free divorce, Emma lobbied at Parliament with other members of Resolution in 2016 to bring about the recent changes to divorce law.

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Everything You Need to Know About Family Mediation Process

Stacey Nevin
Stacey Nevin
Partner
Kingsley Napley LLP

In this Mediation Week, Stacey Nevin explains all you need to know about the family mediation process

Mediation is a confidential and voluntary process which involves a series of meetings between a couple and a mediator in which, together, they try to reach an agreement, perhaps on financial matters and/or children arrangements, during a divorce or separation.

A mediator’s role is to guide you and your ex through the process and assist you both in reaching an agreement, rather than to advise you. Importantly the mediator is a neutral professional meaning all the choices and decisions remain yours.

The drawbacks

The mediation process does not guarantee an outcome. The process is voluntary, so either you or your ex can end the process at any time and a decision cannot be imposed. The negotiations also remain confidential, and cannot be referred to in correspondence or court proceedings.

However, the only process that guarantees an outcome for a separating couple is a final hearing in front of a judge (whether this is by way of a private arbitration process or via the public courts), which can be expensive and slow.

The benefits

Even if you have solicitors in the background, mediation usually results in significant cost savings as the work of solicitors is greatly reduced. Where mediation does not result in an overall agreement, it can still narrow the issues so that the work your solicitors need to do is reduced.

There is an increasing push towards transparency in English courts, and so publicity is no longer a worry just for celebrity clientele.  Mediation offers complete privacy.

The family mediation process sees you and your ex coming to a compromised agreement, rather than having a judge (a total stranger to you and your family) impose an outcome. There’s a great power in this and research has suggested that couples are more likely to comply with terms to which they have agreed rather than terms they have had imposed on them.

Not only can mediation be more flexible in outcome, but the process itself is less rigid. You and your ex get to set the agenda and can tailor the process to suit your needs and priorities, with a timetable that works for you both.

Third parties can also be brought into the process by agreement. I have mediated a couple who were seeing a family therapist in parallel, to support them in telling their children they were separating. Her involvement was crucial in helping my clients move forward with living apart as they felt more confident in telling their children and had more trust in each other in doing so. Whilst they were separating, for the purpose of that conversation they were a real partnership, focused solely on their children, and it got their co-parenting journey after separation off on a far better footing.

I’ve also conducted mediations with my clients’ financial advisors present, who adjusted forecasts in the session as proposals changed.

The structure of mediation can be flexible too. The traditional model sees both individuals sat around a table with the mediator, either in person or remotely. But there are now options like shuttle mediation, whereby each person is in a different room, with the mediator shuttling between the two. This can even be conducted remotely, with the use of breakout rooms.

If both individuals and the mediator agree, solicitors can attend mediation meetings for the purpose of getting legal advice without delaying the momentum of discussions.

What can be mediated?

Any issue can be mediated.  Mediation can relate to finances and can also be used for issues relating to arrangements for children.

It can also be used to help a couple reach agreement on very discrete points. For example, I have had clients use mediation to agree on how to introduce a new partner into their children’s lives and another wanted to discuss arrangements for a dog loved by both the parents and their children. In that respect, mediation can be a very proportionate way of dealing with more discrete matters.

Is mediation always appropriate?

No, and part of the mediator’s role is to assess the suitability of the case for mediation.

If mediation comes to an end for any reason, without an overall agreement, your mediator will usually explain alternative options to you and signpost you to any helpful resources.

Can mediation be used where there has been domestic abuse?

An old-fashioned view is that mediation can never be appropriate where there has been domestic abuse. I find this quite problematic when a survivor of domestic abuse wants to mediate. Domestic abuse can remove the agency and control from victims, and I am loathed to remove that if survivors want to mediate. By taking mediation off the table, there is potentially a greater risk of court proceedings, which is a process that can be traumatic for some.

However, the decision to mediate where there has been abuse must be one that is taken carefully. The family mediation process must be safe, and should not be used as a means to continue abuse. Your mediator needs to be confident that they can address any power imbalance, so both of you feel comfortable with voicing honest views in the room and will not feel pressurised into an agreement with which you’re not happy. Shuttle mediation can help with this.

Sometimes, however, it’s still not possible to ensure there is a balance of power or that mediation can remain a safe process, and a mediator then needs to conclude that mediation is not suitable. In these circumstances, they will usually signpost you to resources that might be able to offer you further support or guidance.

Can children be involved?

Children can be involved directly in the family mediation process by way of a Child Inclusive Mediator. These are specially trained mediators, who are able to speak to children directly in separate sessions (i.e. without their parents present) about their wishes and feelings in order to give them a voice in the process.  This mediator will then feedback on their views to both parents (with the child’s permission) and the parent’s mediator.

It can be very helpful for a child to know they have a way to have their voice heard.

Is mediation easy?

Not always. Even an amicable divorce isn’t easy. The nature of the feelings and emotions involved makes that almost certain. Mediation requires effort, by both individuals. Like any aspect of separation, it can feel like a rollercoaster at times; you may finish one session feeling more positive than your ex, and that might flip by the end of the next session, as different topics are explored.

But long term, it is often a far healthier route for separating couples and families. Like any healthy lifestyle, it can feel like hard work at first but the long-term benefits make the effort worthwhile in the end.

Read more articles by Stacey Nevin.

About Stacey Nevin

Stacey Nevin, an associate in the Family & Divorce Law team at Kingsley Napley LLP. She works on cases involving all aspects of family law including maintenance cases, private children cases and relocation cases.

The Importance of Child Inclusive Mediation - TDM Expert Interviews (EP. 2) - Nicki Mitchell
Thumbnail for the YouTube video "The Importance of Child Inclusive Mediation - TDM Expert Interviews (EP. 2) - Nicki Mitchell"

A Guide to Child Inclusive Mediation – TDM Expert Interviews (EP.2) – Nicki Mitchell

Nicki Mitchell
Nicki Mitchell
Partner
Jones Myers

Discover the pivotal role of Child Inclusive Mediation in the divorce process as Nicki Mitchell, Partner at Jones Myers Family Law Solicitors, shares her expert insights.

In this enlightening interview, she explains why involving children in the mediation process is crucial and highlights alternative routes for separating couples, steering clear of the courtroom.  

Whether you’re revisiting the conversation, prefer to read, or wish to delve into the details, this transcript offers a comprehensive summary of Nicki’s valuable knowledge and guidance.  

Explore the essential insights and options for a more collaborative divorce journey. Read on for the full transcript of our video, “The Importance of Child Inclusive Mediation.” 

 [https://www.youtube.com/watch?v=AxsAMqn_CgA] 

[Music]

Hello everybody welcome to The Divorce Magazine. Today we have Nicki Mitchell. My name is Soila Sindiyo I’m the Founder of The Divorce Magazine and, I just love meeting our contributors and Nicki has been contributing to with The Divorce Magazine since um, last year but Nicki who’s a Partner at Jones Myers Family Law Solicitors, have been contributing since 2016 so, kind of like way when we had just started and um, so we have like 60 articles on the on The Divorce Magazine from Jones Myers so anybody who wants to know a little bit about this family law solicitors just go on there, you’ll find a lot of information about the processes and where they come from which, is the angle that I always get from your articles yours Nicki included is very child focused and trying to make divorce as amicable a process as possible um, so really happy that we are having this interview with you and so, who is Nicki Mitchell apart from being a Partner at Jones Myers Family Law Solicitors?

Nicki is a very skilled child inclusive mediator, and as well as a family mediator and a collaborative law um, practitioner Nicki is also has had extensive experience in family law, and in particular in financial issues that have to do with relationship breakdown, family businesses and where there are multiple properties involved, as well as that complicated matter of pension arrangements.

So, this is Nicki and we have her here um, so thank you so much for coming Nicki and joining us on this one today what we’re going to be looking at is the whole issue of child inclusive mediation. And I would is there anything you want to add about your introduction by the way Nicki because I’ve just gone off?

No, no that that’s, that’s, that’s very complimentary very nice here thank you very much and no that that encapsulates or I do have the kind of weird interest in pensions I have to say but certainly the ADR approach is absolutely right that that is, definitely the way in which I certainly and the firm as a whole try to approach, dispute resolution within family cases trying to keep it away from the court try and keep control for the people whose lives it affects. Yeah, yeah, you said ADR, not everybody knows what ADR stands for.

What does ADR stand for? 

I’m sorry okay, well in fact it’s now changed it’s Alternative Dispute Resolution, alternatives to the court it’s now become known as Dispute Resolution, the idea being that that it is not an alternative that should be the main way of approaching it so it’s really anything that doesn’t involve um, going to a court and asking a judge for a decision. Okay, so all the things you mentioned mediation, collaborative practice, and there’s also arbitration and um, private processes and so on so so all of that trying to trying to give people, ownership and autonomy and so they can work out their own futures rather than handing it over to somebody else to do.

Oh I like that I like the fact that they’ve removed the A and made it, yeah, it’s another way of getting divorced it’s not the alternative it isn’t one way and then also yeah, okay, that’s really good thank you thank you. So, but today we’re focusing on child inclusive mediation um, tell us what that is.

What is child inclusive mediation? 

So, maybe I should really start with mediation rather than, presuming what that is it’s really not rocket science it’s a it’s a dispute resolution process, the various different models but the kind of classic, conventional one is it’s just a meeting between, the couple and a an impartial mediator like me um, who uses various skills to get, them help them get to a position where they reach agreed proposals about their children about finances about whatever it is they need to discuss and it’s so it is it’s a series of meetings it’s you know they retain control, often there are children involved sometimes the mediation is just about resolving children issues, sometimes it’s you know all kinds of consequences a relationship breakdown, all kinds of things that need to be talked about.

When it comes to children, so actually this again bit of kind of background, in 1989, there was a UN Convention on the rights of the child and that provided, so UN, UN level that children’s voices should be heard in any, proceedings affecting the money issues affecting them so that hasn’t really happened very effectively in my view, despite the fact that was a long quite a long time ago. Yeah, yeah so and there are other jurisdictions Australia interestingly has a much better developed Family Justice System than we have here in England and Wales.

And so in Australia for quite a lot of years now the way in which they have worked to get the voice of the child heard, certainly within the mediation process, focusing specifically on the mediation process rather than courts and you know that’s not what we’re talking about here, is child inclusive mediation. So what it isn’t, is you bring a child in, to a meeting sit them down in front of the parents and say right what do you think, it’s definitely not that it is about the, the child’s voice being heard.

And so it is a separate, it’s within the process first of all the parents you’ll have a conversation with the parents, say “this is something which is a possibility what do you think?” Everybody would have to agree so the child or children and both parents would have to be comfortable with that there’s quite a lot of preparation, for that because it’s really, really important, that everybody goes into it with the right intention and prepared for what might come out of it. So what the child bit, is a separate meeting, a confidential meeting, between me as the mediator and the child or children, and generally speaking there isn’t there are no hard or fast rules about what age it might be, um, but generally speaking a child of around 10 sometimes a bit younger, um. and certainly younger if they are younger siblings of an older child to if you see what I mean.

So it would be a separate meeting, sorry, you mean if they have older siblings then they can be, involved in the process I mean it doesn’t feel right, and I’ll come on to explain in a minute yeah so if you had a 12 year old and an 8 year old, the 12 year old, almost certainly would be, exactly the right age for this and and in terms of family dynamics, and all children you know, needing to be heard, it would be wrong, to in my view to exclude the 8 year old.

As long as they want or everybody wants to do it, really tiny children clearly not, because you can’t have that kind of conversation with them so, there are no hard and fast rules about the age. That, going back to the Australian experience, there’s a lot of research, that says that, children who have had their voices heard in this way have, have tend to have better mental health outcomes, as young adults, than their peers who haven’t gone through that but have experienced parental separation.

And, so, that can be the only reason, it’s a strange one because I’m not a therapist, not trained as a therapist and it isn’t therapy and you make that really clear, but it’s, but the research suggests that just by feeling that they’ve been able to have a confidential meeting with somebody impartial, that that has a positive impact, yeah, on children as they develop, yeah.

That’s really important I mean we see in studies that have been done because we know divorce can have, long-term effects on children, absolutely, if this is one way that that long-term effect can be eliminated or diminished, yes, yeah, absolutely so it may be, that all that happens in that meeting is that the children get things off their chest, and then, they’ve been able to do that, the parents know they’ve been able to do that and that you know that hopefully that will benefit them in the future.

And the reason why I say that might be it, is because the only thing that you can share from that confidential meeting with a child is what they agree you can share. So, it’s possible that some children will say “I don’t want you to share anything”, mostly, I can’t wait to tell you what they want you to tell the parents, and it’s not always what the parents want to hear, or expect to hear, but it is really, really important that everybody understands that that meeting is for the child it’s confidential to the child and anything that’s going to be shared is with the childs expressed permission.

Yeah, so, you know that, more often than not they’ll say things “I just want to just stop arguing”, you know or, it, it you get all kinds of things but, the reason why it’s really, really important to prepare parents for this is because there is a risk, that parents will think, well they’re just going to tell us what the answer is. The decision making remains very, firmly with the parents.

Okay, that’s, that’s one part that I really wanted to know about what happens at the end of that, um, and also I have so many questions that are going through my mind you know coming from my background as a psychologist and working a lot with children, um, and I have so many questions that are floating around in my mind so I like the idea that it’s a safe space for children to just come and, talk and say.

Um, at the same time I’m thinking or I’m wondering about children, do you do you have some kind of way or assessment where you realise that actually it wouldn’t be appropriate, even if the child is 12, 13, 14, where it looks like there’s been coercion, or possible parental alienation, that you think actually there’s no point?

Do you have some kind of way or assessment where you realise that actually it wouldn’t be appropriate to do child inclusive mediation, if there’s been possible coercion or parental alienation? 

Oh yeah, yeah absolutely, it is by no means. In theory, this is something which should be offered, to all children but in practice, the mediator manages the mediation process the mediator as a mediator I can make a call you know I, will not infrequently say right we need to stop that now because this isn’t for whatever reason not necessarily reasons of abuse but, you know it’s just, all becoming unproductive, certainly if there’s any suggestions becoming abusive anyway and similarly, that first meeting with the parents is key.

So there are many reasons including the ones that you’ve said but also, if I think that really, one parent if I think anybody’s going to coach a child, or put pressure on a child, or, if the other thing to expose what do they, what if, there is feedback that they don’t like. So if a child tells me no I do actually want to stay with Dad, and just for example relatively common, thing that we could talk about in mediation, and Mum really doesn’t, expect, to hear that, because the child might have been saying something different as you know you’ll know as well as I do that children want to please and protect don’t they so, they will tell parents different things not because they’re dishonest, but because they’re just, in a really impossible position.

So you know there are cases where the feedback might be entirely unexpected and unwelcome and where, there is the potential for that to have a prejudicial impact on the relationship between the child and that parent, or for them to put pressure on them or whatever you’ve got to spend a lot of time, talking about all of this and assessing it and if there’s any suggestion of that it doesn’t happen.

And do you have um, the meeting with the children do you have, with all the children at the same time let’s say they’re two or three children or do you have them separately, how does that work?

Do you have the session with the children separately or all together? 

Both, both so I would tend to start off with them all together, okay, and then, agree with them and that we spend time, separately.

I’ve never had it I’ve, I’ve never had anybody say “no we’re not doing that”, right, they, they tend to be but obviously you start off and you’ve got games to play but play a lot of Dobble and that kind of thing you know, you’ve got things to kind of put them at ease and have a bit of a chat and so on and once you’ve got to that point then they’re generally quite happy.

I wouldn’t make, especially you know I wouldn’t make a child do that but um, it’s really interesting, that, you know they often do have quite different things to say, and they understand that, they each, you know the children I’ve seen respect the fact that each one of them will have a different view and needs to be able to say that, so, yeah, it’s because it’s a dynamic thing and it’s also the individual perspective.

Yeah, I work a lot with children and families and in my own private practice I work a lot with family or couples or parents who are going through divorce and they’re concerned about their children, or have been Court Ordered to attend Triple P parenting programs so that they can either regain contact and, and so forth um, and I come from that angle, you know that where please listen to the children’s voices, please be health centred child focus it’s not about you here, it’s about them.

So what, what would you say, in your experience what have been the positive or the benefits of child inclusive mediation for the family and for you’ve mentioned a couple in terms of long term, effects, but within the process when you’re mediating and you have the children and you give feedback, what has been your experience um, in terms of the direction that the mediation has taken or changes that have happened?

What would you say are the positives or benefits of the child inclusive mediation process? 

I have had cases where it’s been very difficult, so I’ve and in a case like that where I would see the parents separately at the beginning of the joint session, and that takes some time then to manage and, you know because I can then give the bad news the ability to give the unexpected news to one parent and ,you know also manage the other one’s expectations as to how we’re going to address that when we come back together. But generally speaking, you know if, if you’ve got it right and if they genuinely do want to listen it can be really helpful, it just you know and again you’re getting it right involves, the parents being really clear it’s still their decision, so they don’t have to go along with whatever they said yeah, but you know parents, are interested in all the children say generally speaking, and, you know it has informed, the choices that parents have made in a very positive way.

Do you ever have parents who are separated, and are trying to just come to the best possible scenario for their children who come in just for child inclusive mediation?

Do you ever have parents who are separated, and are trying to just come to the best possible scenario for their children who come in just for child inclusive mediation? 

Yeah, yeah, good. Because quite a lot of people, the thing is in terms of financial work, you know the financial legal work, if parents aren’t married, the finances are actually quite straightforward so often they don’t need to mediate all that they’ve sorted all of that out so it only tends to be in the context to the divorced, when you’ve got the financial stuff as well, and there are lots, lots of you know unmarried families aren’t there so an awful lot of at cases where all they want to talk about is child arrangements.

And are there any disadvantages to child inclusive mediation that you can think of?

Are there any disadvantages to child inclusive mediation? 

Well the role if you get it wrong, so you know if a parent, if a parent does bring pressure on a child I mean, I think coaching is relatively easy spot I mean it’s people will always suggest parents will always suggest that because they’re in a position of fear and they, you know, that it’s entirely natural to be suspicious about, what one, what the other parents saying to a child when they’re not there but, you know you, you either spend time with the parents as an initial Mediation Information Assessment Meeting or a MIAM at the beginning with each of them spending time getting to know them, understanding where they’re coming from, that’s really useful to spend quite a bit of time on that, and then you’ll have them together for a joint session so you do really start to get more of a feel for whether or not you think the impact of that process is, is, is going to be prejudicial because a parent will use it in the wrong way.

So, if you, kind of, don’t spot that for whatever reason and nobody’s perfect are they then there is the potential there for it being prejudicial to the child. We never see it as mediators, we never really see what happens ,further down the line it’s just you’re just involved in resolving that, dispute.

Occasionally people come back and say want to review things and, and so on. There is always a risk with any of these things is that that you know you can’t you can manage a process but you can’t make it perfect. Yeah, yeah, and how many sessions do you see the children for?

How many sessions do you see the children for? 

Usually one, usually just one. So it would usually be, the individual meetings, the meeting with the parents to talk about it, explain it and make sure everything’s right, then you’d write to the child. So I write a handwritten letter, and age appropriately basically saying “you don’t have to come in but your mum and dad have asked me to write to you because they think it would be good for you to have a conversation with me”, so they, tell me what’s going on for you yeah, so maybe coming from mum and dad but you know, he has said duh, duh, duh, duh, it’s me you write to them as well and say I write to them and say mum and dad think it would be a good idea, yeah, you don’t have to do it if you, if you don’t want to, but, you might it might be nice for you to be able to have a chat about all of this.

Um, and you know in in kind of child’s age-appropriate language about, uh you know having to break confidently being confidential about having to break confidentiality if they tell me something that’s a safeguarding issue and then, they could have a session with, with the children, and then shortly afterwards, a session with the parents feedback session with the parents it’s really, important that that’s as short as possible so, you know, nobody’s worried about what’s been said what hasn’t been said, so that’s generally how it works.

I kind of know, the answer to this question seeing how our interview has gone, but what has been your experience of child inclusive mediation, compared to the traditional forms of divorce?

What has been your experience of child inclusive mediation, compared to the traditional forms of divorce mediation? 

Mediation as opposed to traditional yeah, yeah. Where it’s, it’s, you know, “I’m going to see my lawyer, you’re going to see your lawyer” and then yeah, yeah, well. You can probably see this coming but it’s I cannot, say strongly enough, how much better it is, if people can be helped, to keep control of their future, to keep talking about their children.

I think the reality is that even, whether I mean it’s like any profession, there are some really, really good practitioners out there and there are some who, approach it differently, who perhaps don’t kind of get the reality that these are people’s lives. It’s not about scoring points and showing how good you’re at the law or anything like that.

And there are people out there generally speaking is a pretty good enlightened profession but there are people out there so when you get into, you know somebody goes to see a solicitor and straight down the litigation route I can’t tell you how damaging, that is for everybody. I mean it’s bad enough for the lawyers really, it’s not a great job it’s not a great way of earning a living I mean, you know the whole time people firing things that are trying to score points is horrible and it’s not even your life.

So, you know, what mediation, collaborative practice, all of those things. The advantage of those things is that, people keep control of their own lives and, you know, a lot of lawyers would think oh well, they don’t people don’t know what the options are when they come in. They think it’s court, yeah, but I, a very, I can’t really remember anybody who, who you know by the end of the first conversation wants to go to court.

They might think it’s inevitable because they think that their ex, will do that but the reality is, quite often they don’t want to do it it’s fear isn’t it, it’s all about yeah, it’s all about people wanting to protect themselves it’s that kind of fight or flight thing. It’s a clinical, cold process, it’s highly discretion there’s lots of the things that actually matter to people never get mentioned in court proceedings.

So it’s very unsatisfactory all along and all of these things are said in a formal ways, sometimes by pompous lawyers in the courtroom, it’s really, it’s really damaging. Yeah, that I try um, we try to have on The Divorce Magazines when we have contributions you know people will submit articles, that are verging or, leaning very, much towards this part of um, acrimony or, triggering or then we, we don’t talk about that we just want articles, that are because let’s not. Okay, divorce is not pleasant for anybody, no matter which way we go. And I usually say, for the child the separation of the parents is a big deal, but what could be even bigger, which could be the primary trauma is how the whole process is handled, yeah, conflict, yeah, so yeah exactly conflict so in The Divorce Magazine we really try, to not try, we, we I think we do manage to not have articles that are you, know going in that direction and keeping it, letting people know there are other ways of dealing with it and if you have a solicitor these are the things that you need to think about and all articles are contributed by experts like you, you know family lawyers and so forth.

So speaking of the different ways that um, divorce goes, you know the different processes you’ve mentioned some, I’d like to find out a little bit more for instance you mentioned a MIAM. What is a MIAM?

What is a MIAM?

The MIAM is the first stage of the mediation process. So it stands for Mediation Information and Assessment Meeting, so it’s a one-to-one meeting between the mediator and one of the couple, one of the separating couple, where it’s not about solving anything, it’s not about the mediating making judgments or anything it’s about understanding what the issues are, understanding where that person is coming from, giving them information about the mediation process, and coming to a decision at the end of that, as to whether they’re willing to give it a go.

And it’s the MIAM, so people get confused the, the court rules now say ish, they say there are exemptions that if you want to make an application to a family court for a family order, then you have to have had a MIAM. You don’t say you have to mediate it because you know you take horse to water and all that but you have to have had that information. So that’s what the MIAM is so hopefully what it is, is a preliminary to a mediation process but if not it’s, it’s a conversation, to inform people about alternatives to court applications.

And I’m assuming that, correct me if I’m wrong that the MIAM was put in place in that way, you know preliminary to, going to court in the hope that some people will be diverted into a conversational level, absolutely, absolutely, and it does work but it, it often works I mean I, and many mediator colleagues would say, if you get somebody in, it’s very unlikely they’re going to say they don’t want to do it when you explain you know so do you know how long a Court’s gonna take do you know how much it’s going to cost you that kind of thing.

But you do still get referrals and I just I just needed to sign a form there’s a challenge. I don’t think that’s gonna happen um, yeah, so, so yes it’s um, that’s the idea and courts are getting judges are getting better at, because for years they’ve been regulations in place and what people have been doing is just say there’s an exemptions, there are more pages on the Form A which is the financial form, right, about exemption from mediation than there are about anything else so, there’s all kinds of you know, perfectly followed one’s domestic abuse Etc. Although, you know personally I think an initial meeting to properly screen that, yeah, rather than a solicitor, ticking a box, is I think, don’t think that would be a bad idea.

Can I ask you just with regards to that Nicki so let’s say I’m getting divorced, and I say, I said to my future ex-husband to be, shall we go for, for mediation and he says “no I don’t want to go for mediation” anyway, I come to you, I get my MIAM and we eventually, you know end up in court, the fact that he didn’t want to go to mediation, is that ever taken into account is it, you know does it.

If my ex declines going for mediation, is that take into account when going to court? 

Yes and no I mean what you because the mediation, there’s a lot of confidential issues around mediation so mediator isn’t going to be, giving reasons apportioning blame Etc. So in your, in your situation I’m still contacting, okay, so if you come to me for a MIAM, I would still contact him and say “why don’t you just come for a chat”, so there is still, whatever he says, yeah, yeah there’s still that but if he still says no, the courts are getting much better at A. Making sure people have actually not just ticked an exemption box for the sake of it and have seen that and B. adjourning things and saying I saw a couple last week, is that exactly that had happened, applications being made to the court, the court said come on you can sort this out to between yourselves go to mediation.

Yeah, and I’ve had a few like that, so courts are becoming much more, come on this is, this is parenting it’s not law it’s parenting. Have a supported conversation it’s not here’s a conversation, but have one supported by the right professional. That’s really good to hear, so Nicki this brings us really nicely into, my last question, which is, we started off by talking about the different ways of mediation, of divorcing now the different, different processes that are out there, can you tell us, you know we know the traditional one I go like that again in terms of lawyer, lawyer couples go to court and, and all of that or they don’t go to court but it’s just that the lawyers speaking, and then we’ve talked about mediation, family mediation and we’ve talked about the MIAMs and what that means, and where it goes and we’ve talked about child inclusive mediation but what other, other ways are there of um, going through the divorce process.

What other ways are there of going through the divorce process? 

I think what happens is, you get to know somebody, spend some time at the beginning you kind of assess, where they’re at and you can do whatever it takes and you commit, the thing that I find really exciting now about the way family law is developing and it’s been a long time coming, is that there is now an openness to, you know changing tack as you need to if something doesn’t work find a different way of doing it it’s not just you go to mediation, if mediation fails you go to court, there are lots of other ways that you can do it.

So, the main way in which, that kind of process option I would call is collaborative practice. The collaborative practice is, a bit like mediation, but the lawyers are, it’s a team thing so it’s the couple and their lawyers around the table, they sign a contract that says they’re not going to go to court they’re going to sort it out around that table, they can then bring other professionals into that so whether that’s pensions experts, accountants, valuers whatever they can actually come to the table, have a proper conversation so everybody understands things, and questions can be asked.

And then, they reach an agreement and that’s sorted by the lawyers. So that is a really, effective process, quite kind process as well and it’s, it’s team problem solving at its best and, generally speaking that’s, you know it does work. Are there solicitors from two different firms, yeah, two different they come together then the accountants and everybody else that you mentioned are they from, are there two sets of accountants, two sets of, no, okay, there’s just one so the idea is that and I do this in my mediation practice as well.

Quite often with pensions, erm you know we need some pensions of complicated things, we need somebody with our expertise, let’s send them the information so this is what we want to achieve and they’ll come and talk to us about how that can happen. So that can happen in a collaborative process but it’s one, it’s what’s called a ‘Single Joint Expert’ it’s the same principle in court, that instead you know gone are the days where, you would have you know husband’s accountant, the wife’s accountant, and a big scrap about it the court says “no you need to agree one person to do it they’ve got the expertise, let them do it.”

So, those people can come into any process but what, what I find most, exciting about what’s, maybe sounds a bit, wrong to be talking about it but I mean as professionally exciting for me in terms of, seeing really positive change, is that there is an accept there are different models coming out and we’re in the process in York of thinking about, how we can work, by putting a team together so instead of, somebody going to one solicitor or the other person going to the other solicitor, them having completely different styles and everybody ends up confused and, they can’t agree what to do.

Almost you could have it can have a process and it does work there’s a, we spoke to some people some, fantastic women in Melbourne in Australia they came over and spoke to us in the summer and what they do is they, a couple goes, go to them as an organisation and they say right okay this is what you need in your team, you need, you get a lawyer each because you need that guidance, but actually a lot of the works can be done by a financial person because that financial person can get all the financial information together, that saves your lawyer time, you would need some support from divorce coach, family consultant, various different, words for them but they tend, they are people who will be there skilled people who are there to provide that emotional support, that again reduces illegal costs because people, are reliant on family lawyers, to get them through things and that you know it’s part of the job that I like best it’s forming those relationships but I’m not, I’m not trained as a counsellor or you know anything like that so you get, you bring in the people you create a team and then and from the start the choices to work together to get where you need to be.

So we’re looking at ways at the moment in York of um, trying to make that work talking to different professionals and talking to somebody who already, does it in the south of England and trying to put that together. It sounds like a very holistic way of treating, a divorcement yeah, uh, you know different because divorce means so many different things it’s not just a bit of the couple, there’s the lost family home, there’s the loss of the future, the loss of the children’s idea of what life would be like, your idea, you know there’s so much you know the plans and then, not even talking about the pain and you know the hurt the you know, what you’re, feeling and then you know if somebody has not been working now it’s going to go out and getting reskilled it’s such a huge, emotional roller, no well maybe not roller coaster because sometimes can just keep going up yeah, sometimes yeah, I know yeah, yeah.

Thank you so much Nicki, yeah sure I’ve enjoyed it actually yeah, I might get in touch with you because I want to talk about the pension side of, of divorce because I think that’s what um, has been, it’s spoken about but only, it feels like when people just decide we’re breaking up it’s like who’s going to get the house, and then you don’t think about the other things that come after that or on the side of that or um, it would be good to have another interview that’s about the financial side of, absolutely and pensions weirdly pensions, I blame my dad, my dad was an accountant so I do have a there’s, a there’s a natural streak of me that likes the numbers, so and pensions are really complicated and I love it I do find it really interesting although I don’t share that with everybody because people find that strange. Which is all you need.

I like that families you can do the numbers yeah, yeah. Thank you so much, thank you very much and thank you for all the contributions from you and from Jones Myers on to The Divorce Magazine, pleasure no it’s, it’s great and I, I love the ethos I do like that it’s very clear that what you do, it’s a, it’s a positive force it’s like no look at this yeah, make, make choices make better choices yeah, with the right information people often make poor choices because they don’t got the right information. Exactly, exactly and that’s why we only take contributions from, divorce professionals. Anybody else it’s maybe from their own experience of divorce, or step parenting, but when it’s giving, when it’s sharing knowledge about divorce and the divorce process, only from divorce professionals other no bloggers or writers, no you need to be able to be writing for The Divorce Magazine, yeah. Thank you so much, excellent, absolute pleasure.

[Music]

Read more articles by Nicki Mitchell.

About Nicki Mitchell

Nicki is a partner at Jones Myers Family Law Solicitors. With extensive experience in family law, Nicki specialises in the financial aspects of relationship breakdown – and particularly complex cases involving family businesses, multiple properties, and complicated pension arrangements.

Skilled in mediation and collaborative family lawyer, Nicki is also a Child Inclusive Mediator which enables her to meet with children of separated parents and hear what they want for their future.

Mediation must be voluntary to ensure access to justice.
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Mediation Must be Voluntary to Ensure Access to Justice

The Law Society
The Law Society
Professional Body for Solicitors
England & Wales

Divorcing couples should not be subject to mandatory mediation, as putting barriers in place to attending court is likely to deny access to justice, the Law Society of England and Wales said today in response to a government consultation.

The consultation launched in March is seeking views on supporting earlier resolution of private family law arrangements. In its response to the consultation the Law Society is calling on:

  • Mediation to not be mandatory in divorce cases;
  • Early advice for all (subject to means testing)*
  • Support for domestic abuse victims as they go through the court process, which has not been detailed in the government’s proposals;

“The family courts are experiencing significant backlogs and delays.** We are pleased the government is seeking early resolution for families,” Law Society President Lubna Shuja said.

“Delays have a detrimental impact on families seeking justice and can mean parents are prevented from seeing their children. This leaves children without the stability they need to thrive.

“The problems facing the family court will not go away overnight, but with a robust framework, early legal advice and greater options for divorcing couples, there is more chance of early resolution.”

Commenting on mediation being mandatory Lubna Shuja said: “We understand the value of mediation in resolving family disputes amicably without needing to go to court.

“We do not agree, however, with making mediation compulsory. No form of dispute resolution should be mandatory. Attendance must be voluntary for it to be effective.

“Most couples try to avoid costly court litigation and delays to resolution. The types of cases that do require a court hearing or court process – and would be impacted by the compulsory mediation scheme – are complex in nature.

“Complexity needs to be considered, otherwise these proposals could risk harm being done to vulnerable people who are legitimately seeking a court hearing.”

Commenting on support needed for victims of domestic abuse Lubna Shuja said: “The Domestic Abuse Act has been a positive step forward in the government improving the protections available for victims.

“While the government has recognised that cases concerning allegations of domestic abuse need to be an exemption to the scheme, these cases cannot simply be removed.

“Domestic abuse victims need to be referred to services that can protect and support them through the court process. This is not detailed in the government’s proposals.”

About the Law Society

The Law Society is the independent professional body that works globally to support and represent solicitors, promoting the highest professional standards, the public interest and the rule of law.

Press office contact: Naomi Jeffreys | 020 8049 3928

I'm Divorcing - Am I Eligible for Free Mediation Sessions?
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I’m Divorcing – Am I Eligible for Free Mediation Sessions?

Nicki Mitchell
Nicki Mitchell
Partner
Jones Myers

For separating couples, mediation can be a highly effective way of avoiding a lengthy, costly, and drawn-out Court divorce in which children are often caught up in the crossfire.

To help more couples in this situation, the Government has launched and extended a Family Mediation Voucher Scheme to encourage more people to undergo mediation.

What is the Family Mediation Voucher Scheme?

The publicly funded scheme helps separating couples to resolve their family law disputes outside of Court, giving them up to £500 towards the costs of mediation.

Both people involved need to agree to take part – and only Mediators like me who are authorised by the Family Mediation Council (FMC) can conduct the sessions.

How do I know if I’m eligible?

Most divorcing couples are required by law to attend a Mediation Information Assessment Meeting (MIAM). At this session a qualified mediator assesses whether mediation is appropriate for your individual case – and if you qualify for the scheme.

Eligible cases must involve a dispute or court application involving a child, although the sessions can also cover related issues around finances.

Which cases do NOT qualify for the funding?

  • If you’re applying for a consent order
  • If any children are involved in emergency proceedings, care proceedings or supervision proceedings
  • If any of the children are the subject of an emergency protection order, care order or supervision order

Where there are allegations of domestic abuse, the mediator will carefully assess with the person alleging that abuse whether mediation is suitable.

What happens if I quality?

Your mediator will apply for the voucher funding, paid directly to them when the mediation is concluded. Vouchers are limited and the mediation sessions can be attended together or separately.

Will the £500 cover all mediation costs?

This depends upon the mediator’s fees and the number of sessions needed. The voucher is intended to be a contribution towards mediation sessions.

What happens if the mediation doesn’t work?

You and your ex should take advice as to the options available.  Ultimately, if all else fails, you can make an application to go to Court.

What happens if the mediation is successful?

The arrangements agreed in mediation can be put into a document which is often known as a “parenting plan” which you can then both sign.  This provides a useful record of your agreement.

A parenting plan does not have the status of a court order.  However, court orders are not usually necessary or desirable in children cases.

The law (The Children Act 1989) works on the basis of the “non-intervention principle”. Put simply, the law recognises that parents are much better placed to parent than a court and so orders will only be made where necessary in the best interests of a child.

If you can agree, then an order is often not necessary. An order made when children are young will often become a straight jacket by the time they are older.  It makes sense for you to continue to review what your children need as they grow up, and this is much easier to do in mediation than in repeated court applications.

In our extensive experience, along with speed and cost, mediation helps to minimise the damaging fallout from a separation, enabling both parents and their children to move forward.

For more information on the scheme visit Family Mediation Voucher Scheme – GOV.UK (www.gov.uk)

Click here for more articles from Jones Myers.

About Nicki Mitchell

Nicki is a partner at Jones Myers, a niche, multi award-winning family law firm based in Leeds, Harrogate, and York.

With extensive experience in family law, Nicki specialises in the financial aspects of relationship breakdown – and particularly complex cases involving family businesses, multiple properties, and complicated pension arrangements.

A skilled mediator and collaborative family lawyer, Nicki has recently further enhanced her extensive expertise by becoming a child-inclusive mediator. The accreditation enables her to meet with children of separated parents and hear what they want for their future.

Will Compulsory Mediation Protect Children from Courtroom Conflict?
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Will Compulsory Mediation Protect Children from Courtroom Conflict?

Nicki Mitchell
Nicki Mitchell
Partner
Jones Myers

Thousands of children could avoid seeing their parents embroiled in bitter, lengthy, and costly courtroom conflicts following a proposal to make mediation compulsory for separating couples.     

We wholeheartedly welcome the Government’s plan for separating couples to undertake mediation with a qualified mediator like myself to agree key issues such as arrangements for children and financial settlements.

The proposal, which aims to overhaul the family justice system, would apply to all suitable low-level family court cases. It would not include cases involving claims of, or a history of, domestic violence. 

Going to Court would be a last resort if parents are unable to agree a way forward.  

We have witnessed time and again the detrimental, and sometimes long-lasting, impact that contentious courtroom disputes among warring parents can have on children’s physical and mental well-being.

Mediation can help separating couples to find an agreed way forward in a constructive, positive manner which prioritises children’s well-being and helps the long-term interests of all those involved in the break-up.  

A qualified Mediator helps couples to discuss issues confidentially and find workable agreements more quickly and cost effectively. Giving couples control over their divorce, mediation can be completed in several meetings over a few months or, in some case, weeks.     

Going to court is entirely different. If separating couples are unable to reach an agreement, a judge, who doesn’t know them or their children, will decide how their financial assets will be divided. The judge – or Magistrates – will also determine how much time each parent spend with their children and that decision is legally binding.

The compulsory mediation proposal is undergoing a 12-week consultation. More information can be accessed here.  

Another positive move for separating couples sees the Government extending the Family Mediation Voucher Scheme until April 2025.  

Since being launched in March 2021 in response to Covid-19, over 15,000 families have benefited from the publicity funded initiative which gives them vouchers worth £500 for mediation to help resolve their disputes. 

To find out if you qualify for the scheme, visit  Family Mediation Voucher Scheme – GOV.UK (www.gov.uk).

Read more articles by Jones Myers.

About Nicki Mitchell

With extensive experience in family law, Nicki specialises in the financial aspects of relationship breakdown – and particularly complex cases involving family businesses, multiple properties, and complicated pension arrangements. 

A skilled mediator and collaborative family lawyer, Nicki has recently further enhanced her extensive expertise by becoming a child-inclusive mediator. The accreditation enables her to who meets with children of separated parents and hear what they want for their future.

About Jones Myers

Jones Myers is a niche, multi award-winning family law firm based in Leeds, Harrogate, and York

The practice, founded in 1992, has retained its Family Law Firm of the Year North title in the Family Law Awards across 2020-2022 for its outstanding quality of service to clients.

For over two decades the firm has been consistently ranked in a joint Top Tier position by the Legal 500 and Chambers guides alongside national practices.

The Financial Remedies Department acts for clients on divorces, pensions issues, trust work and pre-and post-nuptial agreements.

The Children’s Department delivers every aspect of public and private children law. Managing national and international issues, it specialises in private residence and contact disputes, care proceedings, adoption work, special guardianships, relocations, and education matters.

Jones Myers lawyers are acknowledged leaders in their field and include mediators, collaborative experts, and an in-house barrister.

Email: info@jonesmyers.co.uk 

Locations: 

York

The Quadrant, Bootham Row YO30 7BP, Tel: 01904 202550

Leeds

8 St Pauls Street, Leeds, Leeds, LS1 2LE, Tel: 0113 246 0055

Harrogate 

5 Victoria Avenue, Harrogate, HG1 2PW, Tel: 01423 276104

Is mediation relevant in No-fault divorce

Is mediation relevant in No-Fault Divorce?   

Nicki Mitchell
Nicki Mitchell
Partner
Jones Myers
09 September 2021

No-Fault Divorce – which dispenses with the ‘blame game’ – makes it easier for couples to manage their separation and work together to avoid lengthy, costly, and stressful court disputes.

The ground-breaking changes in the law, which came into effect on April 6, enable divorces to be completed in just six months. They also help separating couples to focus on vital issues such as finances, children, and property.

New time scales include a 20 week ‘reflection period’ between lodging an application and applying for a Conditional Order stating when a marriage will end.

During the 20-week period, mediation can be instrumental in helping couples to negotiate an agreed settlement of the financial issues arising from their separation. This can then be simply provided to the court for approval without any hearings.

We cannot overestimate the importance of addressing the financial consequences of separation, including pensions, insurance benefits, and potential tax implications, and obtaining a court order which confirms how those issues are to be dealt with, before applying for a Final Order which legally ends the marriage.

However, a Final Order of divorce does not, on its own, bring an end to the financial claims which spouses have against each other.

Confidential mediation sessions enable couples to work constructively towards agreed arrangements aligned with the family’s long-term interests.

This measured approach, which keeps communication channels open, can also be key to sorting out the welfare of, and arrangements for, children – whose interests should always come first. Adopting a constructive and united approach can likewise lessen the emotional impact of the split on the children.

It is important that legal advice is taken to support the mediation process – an experienced mediator will guide couples as to when this is needed.

Under No-Fault Divorce, individuals can apply for a Court Order to start the divorce process and, for the first time ever, couples can also submit a joint application on mutual terms.

Irrespective of the divorce process, an early conversation with a family lawyer can help to make informed decisions about the future. Specialist family lawyers often speak with their clients before they make any firm decision to separate and can allay many of their fears.

Click here for more posts 

About Nicki Mitchell

With extensive experience in family law, Nicki specialises in the financial aspects of relationship breakdown – and particularly complex cases involving family businesses, multiple properties, and complicated pension arrangements.

A skilled mediator and collaborative family lawyer, Nicki is also a child-inclusive mediator. The accreditation enables her to who meets with children of separated parents and hear what they want for their future.

www.jonesmyers.co.uk

 

The role of mediation in the divorce process
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The role of mediation in the divorce process

Peter Burgess
Peter Burgess
Founding Partner and Mediator
Burgess Mee Family Law

Many clients who have attended a meeting with a solicitor or done their reading online will have heard about mediation as an option for resolving disputes around divorce or separation.

The government’s strategy for family justice is to require people to attend mediation as a first step before they enter the court system. In this article, as an FMC Accredited Mediator, I will explain a little bit about the mediation process and how it works, and answer some common questions.

What is mediation?

Mediation is a confidential voluntary process by which a neutral third party facilitates discussion between the two clients.

The role of the mediator is not to advise the clients but to help the two of them to discuss any issues arising in relation to, for example, parenting or financial matters. The mediator can, in this context, provide the parties with information, which is not specific to their situation, and ask questions designed to elicit discussion around the specifics.

The mediator can explore outcomes with the clients and look at different options for how to resolve their dispute, using their expertise and experience to do so but without telling the clients what the outcome will be (as doing so would be giving advice).

How does it work?

Mediation for family matters is usually conducted with both clients being present for a joint mediation session with the mediator. Prior to a joint mediation session, however, most mediators (myself included), will ask the clients to complete a questionnaire about their case and attend an intake session. These will be one-to-one, i.e. without the other party present, and are confidential.

During the intake session, the mediator can find out more information about the case, the client can find out about mediation as a process and the mediator can screen to ensure that mediation is appropriate and there are no reasons why mediation could not take place, for example, safeguarding issues.

If the case is appropriate for mediation, the mediator will then see the clients together for 90 minutes at a time.

At the start of the first joint session the clients will need to sign the Agreement to Mediate, which is the terms and conditions for mediation. There might be four or five sessions to resolve issues related to children arrangements, finances and the future of the relationship.

How long will it take?

Mediation is a flexible process. Although the sessions referred to above are usually 90 minutes in length, it is possible to hold shorter or longer sessions to accommodate the clients’ preferences.

Some clients might prefer to just book in a longer session and try to move through the issues. The whole process including some disclosure might take a few months and it can be conducted in parallel with the divorce and children court process.

Can I bring a lawyer in with me?

It is also possible to do “lawyer-supported” mediation, which involves attending mediation with a lawyer present.

The lawyer will be asked to sign the terms and conditions for mediation (the Agreement to Mediate) and can participate in the discussion but the process should still be relatively client-led and the mediator is there to ensure that the clients are each being heard.

Sometimes this is known as “hybrid” mediation as it incorporates aspects of the civil model of mediation (used for resolving non-family and commercial disputes).

What if I don’t even want to be in the same room?

It is also possible to conduct mediation on a “shuttle” basis, whereby the clients are in separate rooms and the mediator shuttles between them.

The downside of shuttle mediation is that it can take longer for progress to be made because part of the benefit of mediation is the impact of hearing the other party in a way enabled by the mediator.

Is it binding?

The outcome of mediation is always subject to the parties’ solicitors’ advice after mediation and is not automatically binding.

However, a carefully considered outcome mediated with an experienced mediator more often than not is the end of the matter, as the parties have invested so much effort in the process.

If they are taking their solicitor’s advice as they go along – either within or outside the mediation – that will decrease the chances of an outcome collapsing at the end.

Is it expensive?

The time with the mediator is usually charged at their hourly or session rate.

As such, using one professional to help negotiate an outcome is generally less expensive than using two lawyers, or is much less expensive than litigation or many other non-court based dispute resolution routes.

It is generally the “least worst” option in terms of acrimony, expense and time.

Do I have to go to mediation?

It is a cornerstone of the mediation process that it is voluntary.

However, in order to issue a court application, unless you have either been a victim of domestic violence or there is some urgency or hardship would be suffered, you need to have a mediator countersign the court form to confirm that you have had the process explained to you and do not wish to participate.

How do I choose a mediator?

Choosing a mediator is not always easy.

Geography has historically played a part, but since the pandemic it is now relatively common to conduct mediation over Zoom, and indeed some mediators and clients prefer that.

There are also some mediators who have a legal background and others who do not, and perhaps come to the discipline via a therapeutic, advisory or other background.

The Family Mediation Council (FMC) runs an accreditation scheme whereby mediators submit examples of their work and case studies for assessment, although accreditation is not necessary and there are many good mediators who  are not FMC accredited.

However, most mediators will have a website and will offer a free initial discussion about the process and how it works.

Are there any things that can’t be mediated?

It is generally possible to mediate almost any issue in the context of divorce, financial arrangements and parenting, apart from taking children into care and other public law issues.

Where a case involves serious violence or a significant power imbalance or communication issues, mediating may not be appropriate.

Click here for more articles from Burgess Mee Family Law

 About Peter Burgess

Peter is one of the two founding partners at Burgess Mee Family Law.

Having trained at top family law firm Withers LLP, Peter founded Burgess Mee with in 2013, where he advises on the full spectrum of family law issues across the firm’s three offices. Peter is also an FMC accredited mediator.

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