Mediation is a process for resolving disputes between two parties. It facilitates the resolution of conflicts through the involvement of a neutral third party, called the mediator. The mediator assists by creating a suitable environment where participants can state their own views and hear what the other side has to say about the dispute. The mediator will use the meeting(s) as a way to find common ground between the parties so that progress can be made, and a resolution can be reached.
Mediation can be used in many legal situations but is a technique often used in separation cases, usually when the couple have decided to divorce. The role of the media is to facilitate a dialogue between parties who have been in conflict. In mediation, the mediator facilitates this process by serving as a neutral third party.
The Purpose of Mediation
Mediation will often be used as a tool when other avenues of dispute resolution have failed, either through informal discussions between individuals or between individuals and their representatives. Mediation provides a flexible alternative and allows couples to work towards a mutually agreeable solution to issues such as dividing assets, property disputes or child access. Mediators will not encourage the parties to reunite but will help them come to a settlement that is realistic and fair.
Mediators will work with the parties during all stages of the process, from setting ground rules at the first meeting through to negotiating agreement over financial issues, reaching a parenting schedule or making arrangements for child support. The mediator will make sure both sides are heard fully and kept informed about developments throughout the proceedings.
During the mediation session, a mediator is not there to provide advice. They are simply there to listen and be an impartial guide to facilitate communications. Mediators are often highly skilled professionals, and they must remain impartial throughout. Mediators will provide information to both parties in relation to the law and the options that are available and can help identify areas where legal intervention may be necessary.
Mediation can take hours or even days before a resolution is reached. Once an agreement has been reached that both parties are happy with, the mediator will draft what is called a ‘Memorandum of Understanding’. This is an important document which outlines the specifics of the agreement and sets out the actions that each side will take. The Memorandum of Understanding can then be taken to a solicitor who can draft the relevant legal documents to make the agreement legally binding. Often, the legal document to accompany the Memoranda of Understanding will be a court order to give it greater strength.
Mediation can take many forms, depending on the type of mediation and those involved. Family mediation will typically take place in the form of several meetings between parties. There will be an initial meeting to discuss the issues, normally mediated by a third party such as a family lawyer or mediator. This gives both sides ‘equal’ rights and prevents them from taking on more than they can cope with or getting stuck in one position for fear of upsetting the other party.
Before the first joint mediation session, the mediator will meet with each party to ensure that they are aware of the process, understand what mediation is and gain a better understanding of each parties point of view. The initial meeting can be undertaken over the phone, by video call or face to face.
At the first joint mediation session, the couple and the mediator will discuss the agenda and identify the issues that are in dispute. The mediation session usually begins with an introductory meeting with all parties in the same room. Depending on the situation, the mediator may separate the parties into two rooms and go between the two in an attempt to reach a resolution.
Family mediation can span over multiple sessions, with four being the minimum and can be spread across several months. Mediation can be a difficult process and this timeframe ensures that the mediation is not too disruptive or demanding. If there is more than one issue that must be addressed, more sessions may be needed. The same is true if the couple have particularly complicated issues or the communication between them has deteriorated significantly.
The Benefits of Mediation
Mediation can save time and money in comparison with some other forms of dispute resolution. As mediation sessions are less formal than court hearings, they take significantly less time. They also cost less than formal hearings since legal expertise is not required and the mediators themselves can help identify areas of conflict to reduce costs.
Mediation can be a very effective way to resolve disputes without going to court, as it allows both parties the opportunity to state their case and provides a forum for discussion. It is an effective technique to use when there has been a complete breakdown in communications between a couple and they are unable to communicate amicably.
Mediation has the power to subtly encourage individuals to reach a mutually beneficial outcome. In addition, mediation is much more cost effective than attending court to resolve disputes.
Often, when an issue proceeds to court, the couple have very little input into the process. Mediation is much more flexible in that it gives the couple greater control over discussions and can have much more input into the decisions that are made, and agreements reached. Court orders by contrast, will place demands on the couple based on an independent investigation. The outcome of a court order may not be what either party wants.
Mediation functions most effectively when it is combined with independent legal advice. Solicitors will have a good understanding of legal rights and can provide useful insights into how communications can proceed. An effective relationship between a legal professional and mediator can greatly assist with the mediation process.
Is Mediation Compulsory
While mediation is useful, it is not always ideal for every couple. If mediation is to succeed, both parties need to want it and they must be willing to meet in good faith. If one party is taking advantage of mediation or not prepared to commit, then the process will probably only serve to delay matters and lead to greater conflict. Furthermore, in some cases, safety issues must be considered. If for example, there has been a history of abuse or domestic violence, mediation would be inappropriate.
If a case does proceed to court, the court will expect the couple to have at least attempted to participate in mediation sessions, particularly where the matter relates to children or finances. The court will expect couples to participate in at least one mediation session before the hearing.
The Role of Solicitors
Every family law case will have its own legal needs. Therefore, there is no definitive yes or no answer as to whether a solicitor’s advice will be needed. In most cases however, a solicitor will be able to provide guidance and advice regarding how to reach an amicable resolution
If the couple go on to divorce, a solicitor will also be needed for this part of the process. A solicitor can provide invaluable legal advice and representation before the court, as well as help with any settlement negotiations.
There are occasions when both parties are represented by different solicitors, particularly in cases involving children or finances. One of the most important roles of a solicitor is to ensure that each party’s interests are properly considered and protected
Solicitors are useful during mediation for a number of reasons:
Identifying the topic of each mediation session, the questions that should be asked and things to consider
The fairness of financial proposals
The information that will be required to give an honest representation of the situation
Ensuring that the couple has covered all potential issues that could arise during a divorce
Making sure that mediation agreements reached are fair and reasonable and whether the court would agree.
Mediators can offer advice on court procedures and the decisions behind granting a court order, but they cannot offer legal advice.