In this article, you can find out how the divorce mediation process works, how to get started, what happens in the first meeting, how much it costs and how an agreement is often reached
How does the mediation process work?
Mediation in a separation/divorce scenario involves both parties meeting with a mediator, who is an independent neutral person, who will help the parties reach an agreement. The mediator cannot give advice to either party but can give information such as stating how the divorce/court financial process works and the type of orders the court can make with regards to financial matters and issues relating to children.
The mediator will want to discover what is important to each party and will invite thoughts and suggestions. They will then often reality test those thoughts to see how well they would work in practice. The mediator often uses a flipchart to record ideas and information so that everybody feels included in the process and has an ongoing visual account of what has been discussed. The task of the mediator is to not only listen to what each person has to say but also to try to get each person to listen to the other. It is important that everybody feels that they have been heard.
What happens in the first divorce mediation meeting?
Initially, each person will meet with the mediator for a mediation information and assessment meeting (MIAM). A MIAM can take place on a one-to-one basis with the mediator or can be a joint MIAM with both parties and the mediator. If the latter, then the mediator will still want to meet with each person individually for part of that meeting to check that they are comfortable in mediating with their partner and to ensure there are no issues that the mediator needs to be aware of which could affect either the ability to mediate or the way the mediation takes place, such as domestic violence. At the MIAM the mediator will explain how the mediation process works and collect information on each person’s personal circumstances.
Following the MIAM, if both parties agree to proceed, a first joint mediation session will be arranged. This could be in person with everybody in the same room, in person with the parties in different rooms (known as shuttle mediation) or online.
What is the role of my solicitor in mediation?
As the mediator cannot give legal advice, it is really important that you also have a solicitor who acts for you and can advise you in the background between meetings. This is not a duplication of work. The role of the mediator is to facilitate discussion to reach agreement, whereas the role of your solicitor is to advise you of the law and the potential range of settlement options/different scenarios that could be considered and what is appropriate for you and your situation. Your solicitor will also advise you on whether any potential agreement is reasonable or not and, in the event of a concluded agreement being reached, can draw up the documentation to submit to the court for the judge’s approval.
How much does divorce mediation cost?
Mediation can be cost-effective when compared to court proceedings although of course it is a very different process. Your mediator will be able to tell you what they charge by way of their hourly rate. This may be similar to your solicitors hourly rate but instead you will usually share the cost equally with your partner and if this is the case you will therefore only typically pay half of the charges. Payment of the mediator is something that is discussed at the outset.
What happens once an agreement is reached in mediation?
Once an agreement is reached the mediator will draw up a memorandum of understanding (MOU) which will be sent to the solicitors. The MOU sets out in detail what has been agreed and why, and the terms of the MOU can be used as a basis for drafting an order reflecting the agreement. Agreement reached in mediation is not final and binding so if your solicitor is concerned about any part of that agreement then the terms of agreement can be reconsidered. That said, if both parties had legal advice between meetings, hopefully, the terms of the MOU will be reasonable in your solicitor’s opinion.
What happens if an agreement isn’t reached?
If mediation breaks down, other options can be explored, such as negotiation directly through solicitors, arbitration and, if necessary, court proceedings. The mediation process may have given you an insight into what your partner would like to achieve which can be helpful when using an alternative process.
How is an agreement reached in mediation formalised?
An order is drafted by your solicitor reflecting the terms of the MOU. This is known as a consent order which is then sent to the court along with a basic financial information form so the judge can consider the agreement and hopefully make it into a final order.
If your mediation was in relation to children matters then drawing up a parenting plan is a good idea, setting out what you both agree and clarifying the movement of the children between parents as well as other issues such as decision-making: https://www.cafcass.gov.uk/parent-carer-or-family-member/applications-child-arrangements-order/resources-help-you-make-arrangements-are-your-childs-best-interests/how-parenting-plan-can-help
How do I get started with divorce mediation?
Your solicitor may have recommendations for mediators or you can search for mediators elsewhere such as on the Resolution website: https://resolution.org.uk/find-a-law-professional/ or the Family Mediation Council website: https://www.familymediationcouncil.org.uk/
This article is written by Rachel Lander of Hawkins Family Law. The information it contains 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.