Mediation in divorce is a method of negotiating with your ex partner about any issues that may arise on separation or divorce. You and your partner would meet with an independent mediator who would act as a facilitator to try and assist you in reaching an agreement. The mediator is not there to advise and we suggest that you always have your own legal adviser in the background.
Our group of Collaborative Law solicitors are committed to helping clients choose the most appropriate forum to secure a positive outcome. Mediation along with other alternative dispute resolution methods, can be incredibly effective in resolving issues outside court. Below, we will discuss how mediation in divorce or separation works, offer advice on which forum might suit you, explain the benefits and potential outcomes, and help you decide if mediation is best for your situation.
What is mediation and how does it work in separation or divorce?
Mediation is a form of alternative dispute resolution (ADR) which involves you and your ex meeting either face to face or virtually with a neutral, professional and ideally, family law specialist mediator who will work with you both to help you to reach an amicable solution to what is troubling you. This could be how you should share caring for your children post separation or how your finances should be divided, or anything else that may arise within the divorce/separation context.
The Courts actively promote mediation, but it is important to remember as with any form of ADR that it is completely voluntary. It is important that both parties commit to the process to optimise the prospect of success.
Alongside the more traditional form of mediation, there is now another option known as hybrid mediation. Hybrid mediation is fundamentally different to more traditional mediation as the mediator works with the parties and their lawyers often over the course of a day, and the mediator is allowed to keep confidences – something a traditional mediator is unable to do. As with other forms of ADR, hybrid mediation can be hugely effective and the advantage for client’s is that they are supported by their own lawyer.
How does traditional mediation work?
Initially, once contact has been made the mediator will invite you and your ex-partner to an introductory meeting which, ideally, will be face to face. The mediator’s role at this meeting is to try and assess whether mediation is the right way to proceed. If it is, then you will both be invited to a joint session.
Please remember that the mediator’s role is to act as a facilitator. The mediator is not able to provide advice and this is the reason why it is so important to have your own specialist family lawyer in the background. The mediator will facilitate an environment where both parties can communicate freely and consider options together. They may do this by asking different questions, ensuring that both parties fully understand the issues, and encouraging suggestions to be made for alternative solutions.
As we mentioned above, a mediation solicitor will not provide any legal advice or take sides in disputes. Instead, you can expect your mediation solicitor to:
● Keep each topic discussed completely confidential to the mediation sessions – they cannot hold confidences between the parties
● Take the time to listen to both points of view
● Take both through the process of financial disclosure if the issues involve finances
● Create an amicable atmosphere where both parties can feel comfortable discussing issues
● Put forward practical suggestions to consider and challenge views that are put forward in a none confrontational way
These mediation sessions are normally held together, but the sessions can take place with both parties in separate rooms if that feels more comfortable.
How to prepare for mediation
Be as prepared as you can. Be clear about what topics are important to you and have some ideas about possible solutions that might work for both you and your family. If you are looking at finances then you will need to provide full and frank financial disclosure. So, find and and start organising your bank statements, tax returns, pay slips, bills, mortgage information and if possible, valuations of any property or other assets as you will need to share these. Bring this information to your introductory meeting with the mediator solicitor.
Mediation tips
Consider carefully who you want to instruct as a mediator. We would always recommend a family law specialist mediator.
Other things to think about are:
● Ensure you have your own family law specialist in the background – Don’t expect the mediator to provide you with any legal advice. Ensure that you are well prepared and know the parameters of what might be achievable following taking legal advice.
● Prepare yourself to negotiate with your ex partner – In mediation, you will be in the same room talking to your ex partner. This must be something that you are comfortable with, so think carefully as to whether this is the right forum for you.
● Consider working with a counsellor – our clients often find that working with a counsellor can really help with the confidence needed to embark on mediation.
● If you reach an agreement – Remember a mediator cannot draft an order for you recording the agreement. In order for a financial order to be binding it will need approval from the court so make sure that your lawyer does this for you. The mediator will record any agreements in a document called a memorandum of understanding (or a Mou). Take your Mou to your lawyer and ask them to consider it for you and make sure it falls within acceptable parameters and then get it incorporated into a consent order.
At the end of mediation
If you have reached an agreement
If the discussions were around child arrangements you might want to consider a parenting plan. If the discussions were on finances within the marriage breakdown you will need a consent order, or if they were discussions around a trust or land dispute – for example where two people had purchased a property together and couldn’t agree how to divide the equity (money) in the house, then you might want an agreement document drafted to formalise what you have agreed.
If no agreement is reached
If an agreement is not reached between you and your partner, speak to your family law solicitor about what else you can try to facilitate reaching an agreement. There are other forms of ADR or, you may want your solicitor to engage with your ex partners solicitor on your behalf.
How long does mediation take?
How long mediation takes is down to you and your ex partner. It is entirely within your control although if it continues over a long time with little progress you may need to consider whether it is working for you.
The benefits of mediation
● A voluntary process – Since mediation is a voluntary process, you and your partner are in control of the agenda and number of sessions you may want to have
● Better communication – Having an independent trained mediator present to facilitate discussions will help keep the focus where it should be and avoid conflict which can really help with future communication
● Flexibility – Mediation can be completely flexible and work to fit your schedule and preferences. That way, you can focus on what matters most, have the time you need to process, and move things along as quickly or as slowly as you would like
● Less time and lower costs – Mediation can move quickly, and can be more cost effective dependent on your circumstances
Cost of mediation
Mediation can be significantly cheaper than certainly than litigation, but it is not free. Generally, your mediator will charge by the hour and each of you will either pay equally or as you may agree.
Mediation FAQs
● Is a mediated agreement legally binding? Any financial agreement within divorce made in mediation must be turned into a consent order in order to become legally binding.
● Are divorce mediators lawyers? Mediators are not always legal experts, they can come from all walks of life – we do recommend though that you choose a lawyer mediator.
● Is mediation a good idea? Mediation is a great option for those who can believe that they can work with their ex-partner to create amicable solutions. If however, your partner was abusive, manipulative, or intimidating, this may not be right for you so speak to your family lawyer to discuss what other options there are.
● Is mediation mandatory? No. Mediation in divorce is completely voluntary.
● Is mediation fair? Mediators generally are trained specialists and are completely unbiased and neutral.
● How long can mediation take? This is down to you and your ex partner but our experience is that on average mediation can be completed in two to six sessions.
Article is written by Joanne Hawkins, Hawkins Family Law
Find out more about Joanne and other members of the MK Collaborative Law Group
This information reflects the author’s view and is believed to be correct at the date of publication. However, it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional legal advice.