How Mediation works
Thank you to Turner & Johnson Mediation for this article.
Family mediation is an impartial, non-confrontational and private way of approaching a wide range of family issues, including separation and divorce. The aim of family mediation is to help families to find their own solutions to problems, tailor-made to fit the family's unique circumstances, avoiding the conflict, the delays and some of the costs associated with litigation.
Mediation is confidential
Mediation is voluntary
Mediators are impartial
In mediation the family members make all the decisions themselves
Family mediation is increasingly popular with couples who have decided that their relationship is over, but who would prefer, if possible, to work together to sort out what should happen now, rather than being told what to do by the courts, or arguing every step of the way through lawyers. Mediation is a particularly good way to help parents focus on what the children need and want.
At the moment family mediation is becoming much more important, because the government now expects most people who want to ask the courts to decide what should happen to their family to see a mediator first, to find out about other ways of solving the problem. This 'expectation' that people will visit a mediator before going to court is soon going to become a 'requirement'.
Mediators usually come from either a legal or a therapy background. Mediators do not offer legal advice, but are able to provide general information about the relevant legal principles, in language that is easily understood, and may also suggest useful reliable sources of further information if that seems appropriate. The mediator cannot advise either of you what would be 'best' in your particular circumstances, although she may, if both of you want to know what she thinks, suggest that there is a possibility that the court might not approve or order the solution that you as a family think would be best.
Finding a Mediation Service
Anyone at all can try to help an individual family to find solutions to the family's problems, and sometimes guidance from a wise friend or relation is all that is needed. However, most families decide that they would prefer to pay for professional help, and if that is what your family needs it is very important that you find someone who is a qualified professional family mediator. If you need to see a family mediator because you are planning to go to court, then you have to find an experienced family mediator who is specially qualified to explain about alternatives to going to court. There are qualified family mediators all over the country, offering a wide range of services, so you shouldn't find this difficult.
The most important thing is to find a family mediator who is a member of one of the following organisations: the Family Mediators Association (FMA), Resolution, National Family Mediation (NFM), the College of Mediators, ADR Group, or the Law Society. The Family Mediation Council is the national body representing all these national family mediation organisations in England and Wales, and the Family Mediation Council sets professional and training standards for all qualified family mediators.
To find a properly qualified family mediator either contact one of the national organisations, who will be happy to refer you to a local mediator from their individual registers; or look at the Ministry of Justice's Find a Mediation Service webpage, which provides contact details for mediation services across the country; this register only lists mediators who work to the Family Mediation Council's standards. You can also search for information about family mediation on the DirectGov website - http://www.direct.gov.uk
Most people who mediate their family issues have to pay for the mediation themselves. How much individual mediators charge varies from service to service, and depends to some extent on where they are in the country, and whether the mediation will involve one or two mediators. However, it is generally true that mediators charge less per hour than solicitors working in the same area, and that the mediation process takes less time than the legal process, so the client pays for fewer hours of professional help. You can split the costs between you equally, or divide them in some other way, whatever suits you in your particular circumstances. To give you some idea of the scale of charges, Turner & Johnson is a central London service offering co-mediation to all our clients, which means that each one of our mediations involves two mediators: we charge £250 per hour for each mediation. Most mediators charge less for the initial 'information and assessment meeting' (usually between about £80 and £150 plus VAT – we charge £100), and this is a cost effective way to find out more about mediation if you aren't sure that it is right for you.
In some cases the government pay for all or part of the mediation. Legal aid for advice on divorce or separation has largely disappeared, but legal aid is still available for family mediation for people below the relevant limits for income and capital. People receiving certain types of welfare benefit are 'passported' to free mediation. We do not offer legal aid mediation, but we are very happy to refer you to a service near you that does.
If you ask qualified family mediators for help, the first stage will normally be that each of you will be invited separately to an information and assessment meeting, so that the mediator can explain in more detail how mediation works and also assess whether mediation is an appropriate way of dealing with your particular concerns.
If everyone involved wants to continue you will both be asked to sign an Agreement to Mediate. This Agreement sets out the basic principles of mediation, reinforcing the message that mediation is confidential and voluntary, that mediators are impartial, and that mediation involves families finding their own solutions to their problems. You should also be supplied with a copy of the mediator's terms and conditions, including their charges; you will normally be asked to pay for the first session in advance, unless you are eligible for legal aid.
Every session thereafter will involve both of you; if you have any concerns about being in the same room as your former partner, or about your ability to negotiate freely, you should raise those concerns at the information and assessment meeting. The mediator will try to ensure that you both have an equal opportunity to put your views forward, and that your discussions are conducted in an atmosphere of mutual respect. Mediation sessions normally last for about an hour and a half, but they may be shorter if for this, or some other reason, the mediator believes that no useful purpose will be served by continuing. Longer sessions can also be productive, if you both feel that you would like more time together to make progress.
No two mediations follow precisely the same pattern, but the first stage of the process involves identifying the issues the two of you want to discuss, making some time to allow each of you to explain your position, and then deciding on the priorities and producing an agenda for the discussions. The way in which the sessions are organised thereafter will vary a little, depending on whether the mediation is limited to children issues, or will include consideration of financial issues.
If financial issues are on the agenda, the next stage will involve the mediators helping you to provide each other with all the financial information that is needed, including your income and expenditure, any property you own, your savings, investments and pensions, and any loans or debts. If either of you fails to provide all the relevant information, any agreement you eventually reach is unlikely to be binding, so it is very important that you are open and honest at this stage. The mediators will record all the information provided in a special document, usually called an 'Open Statement of Financial Information'; this is an 'open' document, which may be used outside the mediation, including by the courts. This is usually a more cost-effective way of 'disclosing' financial information than using solicitors to gather and record the information, but if the information is very complex, or you want someone to do a very rigorous check on the information, you may choose to ask your solicitors to do this stage, and then use mediation for the actual negotiations.
Once this has been done, or if the only issues relate to arrangements for children, the next stage involves the mediators exploring a wide range of options with you, and then helping you to evaluate the practical implications of any options that interest you. The final stage of the process involves finding solutions that both of you feel may be workable, and, if possible, identifying a preferred solution.
Sometimes these three or four stages coincide neatly with mediation sessions, with each session dedicated to a particular stage, but it often happens that one of the stages spills over into the next session, or even that a stage needs revisiting later in the process; please do not worry if this happens during your mediation, it is not at all unusual.
At no point will a solution be forced on you, and you are free to withdraw from the mediation at any point. If the mediation is successful, and the two of you are able to find a possible way forward, the mediators will prepare a Memorandum of Understanding, explaining what the two of you want to happen next. This Memorandum of Understanding is not legally binding, but it should explain in some detail what arrangements you both think could be made, and why. This document can then be taken to your respective solicitors, who will give legal advice as to whether the proposals are likely to be seen as fair and reasonable by the courts, and, if appropriate, draw up a legally binding agreement for you to sign.
A negotiated settlement about what should happen in relation to the children does not necessarily have to involve lawyers or the courts, but a settlement concerning financial issues should be reviewed separately by your lawyers, and the court's approval should be obtained for any agreement reached.
Of course not everyone is able to reach an agreement on every issue, and some couples do not reach the stage of asking the mediators to draw up a Memorandum of Understanding. Even those who do not reach a final agreement often leave mediation commenting that the process has nonetheless been useful in helping them to see where the real issues are, and in understanding the other person's position.
'The aim of argument, or of discussion, should not be victory, but progress.' Joseph Joubert