Family Mediation

Mediation is a process that helps couples sort out issues in a cooperative and supportive forum. It is sometimes referred to as alternative dispute resolution (ADR). This means a way of resolving matters outside of a court process and with a view to avoiding contested hearings.

Mediation is voluntary and so it is important that you find out whether mediation is right for you and is likely to be the best way to sort out whatever issues need to be resolved.

A mediator is a neutral person engaged to help couples agree on areas of dispute. It is their task to identify the problems and then manage direct negotiations between a couple to assist them to reach their own agreement.

Mediators come from different backgrounds and so it is important that you choose the right type of mediator for your case. Most family mediations comprise disputes over children or finance. Here we are all legally qualified mediators. For some cases you may be better off appointing a mediator with a therapeutic background. However, if your case involves complex financial issues you should appoint a legally qualified mediator with extensive experience in the areas in which you need assistance.

Choosing a legally qualified mediator means that the mediator can give you important legal information throughout the process. This will assist you both in your discussions and in reaching informed decisions. However, a mediator cannot advise you as to what the right outcome would be in your particular circumstances or give you legal advice. However, our mediators are settling divorce disputes day in day out and so they know the typical outcomes and can share this information with you and support you to create an outcome which meets your needs and those of your family.

Nearly all situations where there has been a relationship breakdown are suitable for mediation. We can help you sort out matters quickly and amicably and often in a more cost effective manner. Our family mediators have a wealth of experience in all areas of private family law, including:

• financial matters (including complex financial matters, dealing with companies, trusts, pensions etc);
• children matters (including relocations, specific issues (such as schooling) and child arrangements, custody, contact etc);
• cohabitation disputes (including what should happen with a property after a relationship breakdown); and
• pre- and post-nuptial agreements.

We can therefore assist you with any of the above.

The process begins either with a MIAM or an intake session. This is an opportunity for the mediator to find out about you and the issues. The mediator will usually meet with each of you separately to discuss the following:

• Some background information;
• The relationship between you and how you previously dealt with areas of conflict;
• What the issues are that you wish to discuss;
• Any concerns you may have about the process;
• What you hope to achieve from the mediation process;
• What mediation is and how it works; and
• How the meetings might take place and logistics for this moving forward.

Before mediation can begin the mediator will need to assess your situation and determine whether you and your partner are suitable for mediation and whether it is the right process for you. If you are not deemed suitable for mediation, the mediator will discuss other ADR options available to you and advise whether you need to seek legal advice.

If your case is suitable for mediation, you will be sent an Agreement to Mediate and invited to arrange a joint meeting. Throughout the mediation process all negotiations take place in joint sessions hosted by the mediator. These can be held virtually or in person, depending on what suits everyone.

A MIAM is a Mediation Information and Assessment Meeting. This is very much like an intake meeting (as above) and provides you with information about the ADR options available to you, what mediation consists of and how it would work.

A statutory MIAM is a meeting attended with an accredited mediator to explore the potential of mediation prior to issuing a court application. Most people are unable to issue court applications in respect of children or finance without first having had a MIAM. This is not a box-ticking exercise and a mediator is required to give you information about mediation and other options you may wish to explore before proceeding with any court application. The mediator will usually contact your partner to give them an opportunity to also have a MIAM.

Ultimately, mediation can only progress if both parties are in agreement. If mediation breaks down or one party does not wish to engage in mediation, only accredited mediators can sign court applications to confirm this is the case and we are able to offer this service if required.

For financial mediations the requirement to provide ‘full and frank disclosure’ is very similar to any other process, with both you and your partner being required to complete and exchange detailed financial information. This is normally in a document known as a form E. You will also need to provide supporting evidence of your financial circumstances. This means production of bank statements, market appraisals for any properties and details of the value of any pensions. Your mediator will explain what information is required and how to obtain it.

Where finances are complex, it is often necessary to bring in independent people to assist. These are sometimes referred to as ‘financial neutrals’. For example, in cases where there are complex pension issues then either an IFA or a pension actuary can be brought into the mediation in order to discuss pension options. Similarly, an accountant could be brought in to look at the valuation of a company. The mediator will guide you through these options and let you know what is suitable for your particular matter.

Meetings can take place virtually (via Zoom or Microsoft Teams) or in person. The mediator will be able to confirm which approach is most appropriate in your circumstances and will liaise with you to arrange the joint meetings at a time that is convenient for everyone.

Normally the time and date for each session will be agreed well in advance so that everyone can fully prepare ahead of the meeting and know what to expect.

Prior to lockdown nearly all mediation was undertaken on a face to face basis. However, like many people, mediators had to adapt during lockdown and so began working online. They soon discovered that many people prefer the flexibility of online mediation and found it less traumatic as they are not required to sit in the same room as their former partner. Mediators now offer either face to face or online mediation and so, if the online model is to be used then we are able to mediate with couples anywhere in the country and also internationally.

International mediation has proved particularly popular. Whereas in the past where one person has been abroad, it has been difficult to negotiate a settlement either through a court process or in occasional mediation, this can now be arranged very quickly and there are few barriers to prevent real progress from being made.

We would strongly recommend that you seek legal advice from your own solicitor outside of the mediation process. This is important as mediators can provide you with detailed information but cannot advise you on a particular route or outcome. We always advise our clients to take legal advice as this will assist you in making fully informed decisions. A solicitor can help you be aware of the parameters of your case and the likely outcome and, armed with this information, you will find it easier to negotiate the right outcome.

Receiving advice outside of the mediation process does not detract from mediation and can assist and enhance the discussions had within mediation. With your consent, mediators can also share the information you have exchanged with your solicitors and your solicitors can provide helpful advice and guidance as the mediation proceeds.

You will be expected to commit fully to the process, including providing disclosure and information within the process (including meeting deadlines agreed by you in mediation sessions). You will need to be willing to engage in discussions, attend meetings and speak with the other party and the mediator. You will have to be committed to be transparent and forthcoming throughout the process. You will need to come to mediation with an open mind and with a view to resolving your issues if possible. Sadly without this commitment from both parties mediation is unlikely to be successful and other processes may need to be considered.

Mediation can be attempted at any time and it is never too early or too late. The most common times for people to enter into mediation are:

• early on when the decision to separate has been made and there is an acknowledgement that children or financial matters need to be sorted. Starting in mediation means that you start on the right footing with matters being addressed in a constructive and amicable way. However, for some it is too early to negotiate when they are still coming to terms with the relationship breakdown. Often people need to have moved on themselves before they are ready to negotiate and so, for some people, it may be better to wait a while before going into mediation.
• ahead of any anticipated court proceedings. Armed with the knowledge that a matter is about to enter a court process often focuses the mind and many people are ready to attempt to settle before facing a lengthy and expensive court case. This is often a good time to achieve a resolution.
• during the court process. Many people, once they have entered the court arena, find it frustrating, unsupportive and expensive. People are not locked in to that process and indeed judges are under a duty to consider referring cases away from the court and into mediation at all stages of the case. Therefore, a court will be only too pleased to pause a case to allow you to go into mediation and many couples should take advantage of this.
• ahead of a final hearing or court trial. By this time all evidence has been gathered and this is an ideal time to have one final go at resolving matters outside of a court process. The mediator should be able to help you quickly and efficiently as they can be given the court paperwork that has been prepared and there will be detailed documents setting out the issues between you. Thousands of pounds in legal fees could be saved by many couples if only they took the opportunity to mediate before embarking on an expensive and traumatic final hearing.

Yes, complex financial matters can be resolved via mediation. Indeed, we specialise in mediating in complex cases where other mediation services are unable to assist. We have dealt with mediation cases where the assets have been valued up to £30 million and so we believe that mediation is suitable for all kinds of cases, not just limited to situations where financial circumstances are restricted. Indeed, there are lots of examples of cases reaching the High Court and even the Court of Appeal where judges have time and again told parties that their situations were such that they could have been resolved in mediation and helped avoid tens of thousands of pounds (and more) in complex legal proceedings.

Ultimately, whether mediation is the right solution for you will depend on your individual circumstances, but a concern that financial assets might be complex should not be a bar to you seeing if mediation is a viable option.

The discussions within the mediation process are held on what is known as a without prejudice or legally privileged basis. This means that what is said in mediation is kept confidential, save for some limited exceptions (which include sharing the information and discussions with your solicitor so that you can obtain legal advice). The contents of those conversations cannot be disclosed to a court. The benefit of this is that you can speak openly and freely without ever thinking that what you say in mediation could be held against you in the future or used against you to your disadvantage.

If an agreement is reached in mediation in relation to financial matters, the mediator will draw up a document known as a memorandum of understanding (MOU). This document summarises the discussion you have had and the proposal you have decided is the best fit for your circumstances. The MOU allows your solicitors to advise you on the outcome and assist you in next steps. This document is usually framed in a way to assist your solicitors with drafting a consent order to formalise the agreement into a legally binding court order should you so wish.

The memorandum of understanding is not a legally binding document. Once mediation has concluded and the MOU is produced, each party will usually take advice on the proposed settlement from their own solicitors before drawing up a legally binding document known as a consent order. This is then signed by both parties and submitted to the court for approval.

This is not an exhaustive list but some of the benefits of engaging in mediation are:

• it is a voluntary process, which means both parties are committed to trying to resolve matters. You are there because you want to be there, not because you are being forced to negotiate;
• it is usually, but not always, a cheaper method of resolving disputes;
• it is less confrontational than solicitor led negotiations or court proceedings;
• the timescale can be set by both parties, providing maximum flexibility;
• couples tend to feel that they have ownership over the settlement reached and research suggests that clients are generally happier with the terms of a mediated agreement in the long term;
• mediation can encourage an atmosphere in which couples who have children can continue to cooperate going forward and to retain a civil relationship for the benefit of the children;
• negotiation is totally confidential and therefore couples negotiate freely without fear that things said can be used against them in court; and
• both parties must want to achieve a fair outcome for each of you.

Mediation is not the right process for everyone. It is important for you to understand some of the potential pitfalls of this process before you enter into it. These are:

• It is voluntary and therefore you cannot proceed in mediation if one party is reluctant.
• There is no timetable and so matters could be dragged out if one party is less cooperative than the other.
• There is no way of forcing somebody to produce information if they do not wish to do so. In those circumstances if the mediator feels essential information is being withheld they may need to bring the mediation to an end.
• There is no guaranteed outcome as, unless you both accept the terms, either you or your partner could walk away from the process.
• If an agreement cannot be reached, then you will need to try another process and there will likely be additional costs involved.
• Mediation will only be appropriate where both parties are cooperative and give their full commitment to the process and are honest about their finances.
• The outcome of a mediation is not legally binding. For there to be a legally binding agreement the terms have to be passed to a solicitor, who will draft an agreement for you but there is the always a possibility that where an agreement is reached one party may change their mind following legal advice, which again could lead to additional costs.

The cost of mediation will vary depending on how many sessions you need to resolve matters and which mediator you instruct. At Paris Smith, we have mediators with hourly rates ranging from £195 plus VAT to £370 plus VAT. Time is charged at an hourly rate and information about potential costs are included within the agreement to mediate.

Generally speaking, an intake meeting will take approximately one hour each and joint meetings can take approximately 2 hours. However, the length of time taken in each session will depend on you and the mediator and can be shorter or longer, dependent upon preference. Most mediations involve between 3 and 5 sessions, but there is no one-size-fits-all solution in mediation and it will depend on a number of factors including the size of your assets and also your willingness to compromise.

If you are keen to proceed into mediation then we suggest that you complete the self-referral form.