Reasons to try Mediation
Family mediation has become an increasingly important method of resolving disputes for couples looking to separate or divorce, particularly where children are involved. One of the many advantages of mediation is that it promotes constructive communication, collaborative problem-solving, and child-focused outcomes instead of the more hostile, adversarial approach often associated with court proceedings.
The courts are placing great emphasis on the importance of separating couples trying non-court dispute resolution before applications are made to court. Mediation is one form of non-court dispute resolution which can offer many potential benefits, and it is designed to be less stressful and more cost-effective than court litigation. It can reduce conflict, minimise emotional harm to children, improve communication between parents, and support long-term co-parenting relationships.
By focusing on interests rather than ‘rights’, mediation can create more realistic, workable, and personalised outcomes for families. Most importantly, because the couple are directly involved in making their own decisions, the mediation process can be more empowering, whereas having a court order imposed can feel restrictive and sometimes, unfair.
What is Mediation?
Mediation is a voluntary, confidential process where the mediator acts as an impartial third party and gives you and your partner the chance to reflect on your situation and agree a way forward in terms of children, finances, or property. The role of the mediator is to facilitate communication and constructive conversations between the separating couple, ensuring both people can speak without interruption.
The mediator remains entirely neutral, balanced, and unbiased, and does not assign blame or make judgements. They will try to sift through emotions to find the root of the conflict and identify common ground, guiding the couple towards agreeing proposals and reaching a voluntary settlement.
A mediator cannot offer ‘advice’, but can give generic legal, practical, or financial information and can explain the range of orders that a court would be likely to make. If specific individual advice is required, the mediator will suggest that you and your partner each obtain separate independent legal advice from solicitors and other professionals where appropriate.
Is Mediation a Safe Option?
Deciding whether mediation is suitable and safe needs careful assessment by both the mediator and the separating couple.
To assess whether mediation will be appropriate, mediators use a variety of well-established mediation theories and core principles, in addition to the Family Mediation Council’s Code of Practice. The professional judgement of the mediator is also key, and the mediator will want to ensure that the decision to mediate is voluntary and safe and that nobody has been forced or coerced into it against their will. The mediator will continue to ensure that mediation remains safe and voluntary throughout the mediation process, not just at the start.
There may be some instances where mediation is not appropriate; for example, where there is a high risk of domestic abuse, serious coercive control or a power imbalance, substantial deficiencies in financial disclosure, severe emotional vulnerability, or complex legal issues that require court intervention.
The Stages of Mediation
1. The Initial Meeting or MIAM
Before the mediation process starts, both you and your partner will have the opportunity to attend separate individual meetings with the mediator to discuss your situation. You may already have had a telephone conversation with the mediator beforehand and would have been sent a Preliminary Information Form to complete ahead of the initial meeting.
The initial meeting is your opportunity to find out how mediation works, what will be involved, and to decide whether it is right for you. If either you and/or your partner decide that mediation is not suitable at your respective initial meetings, or if the mediator feels that mediation is not appropriate, mediation will not proceed any further.
Unless your case falls under one of the exemptions, if you are intending to make an application for a Matrimonial Finance Order (Form A) or an application for a Child Arrangements Order (Form C100), the mediator needs to sign the Form A to say that mediation is not suitable in your case. For both applications, the mediator’s signature will remain valid for 4 months.
Mediation will not be suitable if it is considered unsafe, or if either or both partners simply do not wish to mediate.
2. First Joint Meeting
If you and your partner decide that you want to try mediation, there will be a joint meeting with you, your partner, and the mediator present. You and your partner will be asked to sign the Agreement to Mediate, which formalises the mediation structure and sets out the ground rules.
During the first joint meeting, both you and your partner would also outline what you want to achieve and highlight the key points for discussion in relation to children and/or financial issues so that an agenda can be agreed.
Prior to the second joint meeting, if there are financial issues that need to be resolved, you and your partner will be asked to complete a financial disclosure form.
3. Second Joint Meeting
If you and your partner are aiming to resolve financial matters, the purpose of the second joint meeting is to go through each other’s financial disclosure with the mediator. If there is any missing information or any points which require clarification, this can be done at this meeting.
If you need to sort out the child arrangements, this session will focus heavily on exploring specific parenting priorities and practical arrangements such as where the children will live, how much time they spend with each of you, holiday schedules, and co-parenting boundaries.
If needed, this meeting can be used to introduce outside experts, such as independent financial advisors, pension specialists, or child inclusive mediators.
4. Third Joint Meeting
The third joint meeting serves as the negotiation, evaluation, and narrowing phase, where options are stress-tested and final proposals begin to take shape. For example, complex issues about assets can be discussed and valuations of assets can be reviewed. The mediator will help each of you evaluate the practical, financial, and emotional viability of the options brainstormed in the previous session.
Child arrangements proposals can also be discussed if there are dependent children.
The focus of this session will shift to narrowing down issues to find a mutually acceptable compromise. The mediator will also look closely at each of your proposed solutions to ensure they are realistic, fair, and sustainable for you, your partner, and any children involved.
If a consensus is achieved on some or all the issues, the mediator may begin outlining these points, which will form the basis for the Memorandum of Understanding (MOU) that lawyers will later use to create a legally binding order.
If you and your partner wish to enter into a Parenting Plan, the mediator will start to note down the proposals which you both wish to be included in the plan.
5. Fourth Joint Meeting
A fourth joint meeting may not be necessary; however, if there are any outstanding issues, this session generally serves as the finalisation, documentation, and concluding phase of the process. Proposals can be finalised; outcomes can be fine-tuned in respect of complex financial arrangement or intricate child arrangements to ensure there are no lingering points of conflict.
Conclusion
Every family is different, and there is no single approach that works for everyone when a relationship comes to an end. Family mediation can be a highly effective option for separating couples, providing a safe and supportive environment to discuss important decisions about children, finances, and the future, and helping them retain control over the outcome rather than leaving decisions to a court.
While mediation is not suitable in every situation, many couples find that it enables them to communicate more effectively, reduce conflict and reach practical agreements that work for their family. Seeking early legal advice alongside mediation can help you understand your options and make an informed decision as to whether it is the right process for you.
If you are considering separation and are unsure about mediation or other forms of non-court dispute resolution methods, make an appointment with Keshini Rajendra, Partner and Co-Head of the Family team on +44 (0) 20 7851 0114 or ksr@branchaustinmccormick.com.