eBriefs
What is mediation?
22nd August 2023
Mediation is a voluntary and confidential process whereby two parties have discussions in order to try and reach agreement. A mediator is a neutral party to the negotiations and has the role of facilitating discussions.
It is important to note that a family law mediator will not tell you what you should do nor will they make decisions for you. In a family law context, mediation is often used in matters relating to financial settlements (following a divorce or separation) or the arrangements in respect of children.
How does it work?
As a starting point, you will be invited to a Mediation Information and Assessment Meeting (MIAM) which is an initial meeting with a family mediator who will consider whether your issues can be resolved without going to court. Should your mediator deem your case suitable to proceed, there are two main types of mediation.
The first type of mediation is known as classic mediation which is where the parties concerned will sit together in a room with the mediator. This can also take place online through a video call. If you are not comfortable being in the same room as the other party to the mediation, there is a second type of mediation known as shuttle mediation which is where the parties concerned will sit in separate rooms (physically or virtually) and the mediator will go between the two rooms to facilitate discussions. Due to the flexible nature of mediation, it is of course entirely up to the parties concerned as to how they wish for their mediation to be conducted.
Do I have attend mediation?
Where a dispute relates to children or finances, parties must attend a MIAM before applying to the court for assistance to resolve the dispute. There are, however, some exemptions to this, for example, where there is a matter of urgency or where there has been domestic abuse.
What are the advantages of mediation?
- Control: Unlike court proceedings during which a Judge or Magistrates have sole control, mediation provides parties with full control over the outcome. Not only do you have the freedom to choose whether you become involved in the mediation process, but any decision reached will be made by the parties involved in the dispute instead of a third party. Having control also enables the process to be entirely flexible and can be tailored to meet both parties’ needs.
- Lower Costs: whilst there are costs involved in mediation, they are not comparable to the costs involved in going to court.
Are there any disadvantages?
- Not legally-binding: any agreement reached within the mediation process is not legally binding. This means that any party to the mediation can go back on any decisions agreed during the mediation. Fortunately, parties can ask solicitors to draw up documentation to enable any agreement reached in mediation to become legally binding.
- No guaranteed outcome: mediation does not work for everyone and there is no guarantee that it will end in resolution. It is a process that requires individuals in dispute to cooperate and that is not always possible. In such case, the entire process of going through mediation will only contribute to the time and therefore the costs to the process of resolving the dispute. However, in 2019 the Family Mediation Council conducted a survey across 2,161 mediation cases.
It was found that in 70% of cases, parties to mediation were able to reach either a complete or partial agreement. In 50% of cases a complete, written agreement was made with the remaining 20% reaching an agreement on some issues but with no written agreement. This survey demonstrated that more often than not mediation does provide a successful outcome.
Government funded support
The Government have set up the Family Mediation Voucher Scheme to encourage the use of mediation. Through this scheme, the Government will contribute £500 towards the costs of mediation should the eligibility requirements be met.
In order to receive the £500 voucher, the matter must be either a dispute relating to a child or a dispute relating to financial remedy and a child. If you choose to go ahead with the mediation and your dispute meets the eligibility requirements, your mediator will apply for the voucher and it will be paid directly to them. The mediator however, must be accredited in order to apply for this voucher.
Philip Elliott who is Partner in this firm is an accredited mediator with considerable experience in dealing with family mediation matters. If you have a matter that you are looking to resolve through mediation, please do not hesitate to telephone us on 01234 303030 or email Philip at philip.elliott@sharmanlaw.co.uk.
Tagged in...