Family Mediation – Frequently Asked Questions

Mediation is a way of resolving the issues which might arise on divorce or separation, including the arrangements for your children and sorting out the money side of things. It takes place over a series of meetings with the mediator who will facilitate the discussions so that you are able to talk about difficult issues without getting distracted or starting to argue. Meetings can take place in person or remotely.

If all goes well, you will be able to agree without having to go to court.

A mediator is a specially trained expert in guiding discussions so that:

• each of you gets a chance to speak openly;
• everyone is heard;
• the issues are identified; and
• ways of resolving those issues are identified and considered.

And hopefully, agreement will be reached so that you don’t have to go to court.

You can search on-line for mediators with the specialist expertise you need. For some cases – perhaps those involving complex issues around the children – you might need someone with a therapeutic background. However, if your case is about money, you should consider appointing a legally qualified mediator.

A mediator can’t tell either of you what to agree or give you legal advice, but our mediators are settling divorce disputes day in day out and so they know what works and what doesn’t and will enable you to create an outcome which meets your needs and those of your family.

Nearly all cases are suitable for mediation but care needs to be taken to ensure it’s right for you. If there’s a history of domestic abuse, for example, it may not be suitable, or if there is a significant imbalance of power between you.

Provided your case is suitable, our expert mediators can help with the following:

• Financial matters (including complex financial matters, dealing with companies, trusts, pensions etc);
• Child arrangements (including who the child lives with, relocations, education and maintenance);
• Cohabitation disputes (including what should happen with a property after a relationship breakdown); and
• Pre- and post-nuptial agreements.

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 and should not be limited to situations where financial circumstances are restricted. Indeed, there are many examples of high value cases reaching the High Court and even the Court of Appeal where judges have time and again told the parties that they could have resolved their case in mediation and avoided tens of thousands of pounds (and more) in legal fees.

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 process begins either with a Mediation Information and Assessment Meeting (a “MIAM”) or an intake session. This is so that the mediator can find out what your case is about and to assess whether it’s suitable for mediation. The mediator will meet each of you separately at this stage.

The mediator will ask about:

• 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; and
• what you hope to achieve.

If mediation is not suitable for your case, the mediator will discuss what other options are available to you.

If your case is suitable for mediation, you will each be sent an Agreement to Mediate and invited to arrange a joint meeting.

A MIAM is a Mediation Information and Assessment Meeting hosted by the mediator who will provide you with information about what mediation is and how it works. Importantly, the mediator will also provide information about the alternatives to mediation, such as collaborative practice and arbitration.

A statutory MIAM is a meeting hosted by an accredited mediator to explore the potential of mediation prior to one of the parties issuing a court application. You won’t usually be able to start court proceedings without first having attended a MIAM and the mediator will contact your partner to invite them to also attend a MIAM.

If mediation breaks down or one party does not wish to engage in mediation or the case is not suitable for mediation, only an accredited mediator can provide the necessary certificate to the court to enable a court application to be issued. We are able to offer this service if required.

In order to get the best out of the process you will need to commit fully to it, including meeting agreed deadlines and being willing to listen and compromise. You will need to come to mediation with an open mind and a willingness to achieve an outcome that is fair to you both. Without that commitment from both parties, mediation is unlikely to be successful and you may need to consider other processes.

For financial mediations you will also be required to provide full and frank disclosure of all relevant information and documents. This is often completed with the help of a document known as a form E – see the government’s website.

Your mediator will explain to you the documents you will need to produce, but bank statements, property valuations and pay slips will be the bare minimum. If your case is complex and/or high value, there is likely to be a great deal more required.

Where finances are complex, it can be really helpful to bring in independent third parties to assist. These are sometimes referred to as ‘financial neutrals’.

For example, in cases where there are complex pension issues either an IFA or a pension actuary can be brought into the meetings in order to discuss the options available to you. Similarly, an accountant could be brought in to advise about the value of a company or a tax expert to advise about the taxation consequences of any proposed agreement.

It might also be helpful to bring in divorce or life coaches to provide the necessary tools and emotional support to enable both of you to get the most out of the process.

The mediator will guide you through what might be suitable for your particular matter, and it can be incredibly powerful if the right people are brought in at the right time.

The mediator doesn’t have to be local to you, since mediation can be conducted remotely. It’s more important to find someone who is the right fit for you than someone who just happens to be local.

Mediators offer either face to face or online mediation. 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.

The mediator 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.

We would strongly recommend that you seek legal advice from your own solicitor alongside the mediation process. Unlike the mediator, your solicitor will be able to advise you independently about what you might expect in terms of the likely outcome of your case. With this information to hand, you may find it easier to reach a settlement .

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

• At the point of separation when there is an acknowledgement that children or financial matters need to be sorted. Starting mediation early means that you are less likely to have become entrenched, and you might be more able to discuss matters constructively and amicably. 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. 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 necessarily locked into that process and indeed judges are required to consider mediation at all stages of the case. Therefore, the court will be only too pleased to adjourn your court case to allow you to head 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 could be an ideal time to have one final go at agreeing things before a judge imposes their decision on you both . Thousands of pounds in legal fees could be saved by if only couples took the opportunity to mediate before embarking on an expensive and traumatic final hearing.

Discussions in mediation are held without prejudice or on a legally privileged basis. This means that what is said in mediation is 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 must not be disclosed to a court.

Disclosure provided in mediation is not however privileged. This means that although negotiations and general discussions remain private, any information you provide relating to your financial circumstances may be relied on by the other party in open correspondence, or even litigation. It is therefore essential, as noted above, that you enter the process with open hands, willing to provide full and frank disclosure as to your financial circumstances.

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), which summarises the agreement you have reached. At this stage, the agreement is not legally binding.

You will then be given an opportunity to take independent legal advice on the agreement, as set out in the MOU. Under our model we would hope that you would have taken advice along the way so that the outcome your solicitor sees is in line with expectations. In addition, as lawyer mediators, we will provide legal and other information on an even-handed and general basis to assist you both in how the general principles of the law may affect anything you are planning or proposing to do as a result of your discussions together, including how the courts consider what would be within a reasonable range for any outcome/settlement. This will prevent any MOU from containing terms that are likely to be unfair to either of you, unworkable or otherwise unlikely to be accepted by the court, unless you have already been given this information and wish to continue notwithstanding the information given to you by the mediator.

Once you have both had the opportunity of seeking independent legal advice and are happy to proceed, one of the solicitors will draw up a draft consent order. Ultimately, this will be submitted to the court for a judge’s approval. That is the point at which the agreement becomes legally binding.

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

• It’s a voluntary process, which means both parties are committed to trying to agree;
• It is usually, but not always, a cheaper method of resolving disputes;
• It is less confrontational than court proceedings;
• The timescale can be set by both parties, providing maximum flexibility;
• You both “buy in” to the solution, and research suggests that clients are generally happier with the outcome;
• Mediation can encourage an atmosphere in which couples who have children can continue to co-parent;
• Negotiation is totally confidential and therefore couples can negotiate freely without fear of saying something that could damage or compromise their position should the matter later have to be resolved by a court.

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 if one party rejects it;
• 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 the mediator may need to bring the process to an end, and you might already have spent a lot of time, energy and money by then;
• There is no guaranteed outcome as, unless you both accept the terms, either you or your partner could walk away from the process.

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 starting at £230 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 subsequent 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 would invite you to complete this self-referral form and we will get back to you.

We hope to work with you and your partner to create a bespoke settlement which meets the needs of the family – particularly any children you may have – and which is right for you.