What good is mediation? This was the question I was recently asked by a client.
John had separated from his wife, Jane, with whom he had three children, and divorce proceedings had started. John wanted to know how mediation would help him and was sceptical about its voluntary and impartial nature.
Mediation is voluntary and does depend on the commitment and goodwill of all those involved. These may be its weaknesses, but they are also its strengths.
Mediation is more personal than a court case as its you, your (former) partner/spouse and the mediator(s). This can help everyone get straight to the issues, and you, the parties, decide what these are.
A court case is inevitably formal, and there are complex rules, procedures and strict time limits. Mediation is much less formal and the parties are able to talk directly to each other, rather than via lawyers making submissions to a judge. This doesn’t mean it’s a free-for-all, as mediators will make sure that everyone gets to have their say in a safe and respectful environment.
The freedom to express emotion, without it being held against you, can be one of the most important benefits of mediation.
As a mediator, I’ve heard clients say how valuable it was to be able to tell the other person how they felt. This can significantly help you to acknowledge the complex emotional issues involved in your situation in a way that enables you to focus on working towards a resolution. Whilst courtrooms can be the scene of high emotion and drama, experience demonstrates that they are unlikely to feel a safe environment within which to express those feelings.
Mediation is confidential, and so you can feel free to say what you feel you need to.
The only times mediators will break confidentiality is where we have to do so because there is a safeguarding concern about a child or vulnerable adult or to prevent a crime being committed, such as money laundering.
You might understandably feel nervous about going into a room with your ex-partner and having a face to face discussion about personal and emotive issues. But you’re not on your own.
Mediators are trained to level out any power imbalances between parties and will step in if we feel that one person is being overbearing or to prevent a discussion becoming an argument. I’ve frequently mediated with colleagues of the opposite sex and this can be a good way to help balance out gender differences and ensure that no-one feels isolated.
Mediators are impartial, but that doesn’t mean we just sit on the fence. We’ll give you clear, unbiased information, but not legal advice, and we may actively manage the process so that you can work on resolving as much as you can.
Its not essential to get an agreement on every single point.
Mediation can be successful if the parties narrow down the issues. For example, you might agree arrangements for contact with your children, but don’t agree on whether the family home is to be sold.
The fact that you’ve agreed some issues can save you time and money if you need to go forward to a court hearing or family arbitration.
You can also come back to mediation if necessary and this can be particularly helpful when discussing changes to contact arrangements.
Mediators, and the Government, justifiably say that mediation can be quicker and less expensive than going to court. According to the Ministry of Justice press release of 7 January 2014, an average divorce case costs about £4,000 whereas mediation can cost about £500. Whilst mediation is less expensive than litigation, that doesn’t mean that mediators are cheap or somehow a lesser service.
Mediators are professionals, and we may be lawyers, therapists or from another background. All of us are professionals and comply with a Code of Practice and must meet quality standards.
So, if you go to mediation, does that mean you don’t need lawyers? Not quite. Although mediators help you to reach an agreement, you’ll still need some legal advice.
This is to help you make sure that your rights are protected and as its often best to then turn your agreement into a court order. Solicitors and barristers can help you do this, and if the mediator has given you a clear written summary of the agreement, then that will help keep your costs down too as the lawyers will have to do less work.
At the end of the day, a mediation is where you are able to talk about your situation and you hold the decision making power. In court, although you can put forward your views, a judge will make the decision for you.
Judges in family courts, as well as family arbitrators, are experienced and highly trained people who are committed to deciding cases openly and fairly, and at least some are also mediators. But, if you can work out a resolution on at least some issues, it can be a way to help you move on with your life.
It can also be a good foundation for co-parenting with your former partner/spouse. Whilst your roles as partners has ended, your roles as parents will continue, and mediation can help you to do this.
Simon Robinson LL.B(Hons) LL.M MCIArb,
Barrister and Family Mediator
 Individual’s names have been changed for privacy