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 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.
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.
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.