Janine Hutson from Harrison Drury’s Divorce and Family Law team looks at the issues around using mediation during separation and divorce.
What is mediation?
Put simply, mediation is a way of attempting to resolve issues that arise when you separate. It can be used to discuss what you will do about issues relating to children or finances. Sometimes mediation can be confused with marriage counselling, but mediation is for resolving the issues that arise from a separation not attempting to save a relationship.
The key benefit of mediation is that it may assist you in reaching an agreement about financial and property issues and making arrangements for your children. Or it may help resolve some of the issues, meaning that your solicitors can focus on any remaining issues which remain unresolved.
How does mediation work?
A mediator is an impartial person who will help guide your discussions with your partner. They are specially trained to help you identify and resolve issues amicably.
Their role is not to give legal advice, and they are not qualified to do this, but they can offer information on what options are open to you. It is important that throughout the mediation process you also seek independent legal advice about the issues which are being discussed. Your solicitor can refer you to a mediation service and it is always generally best to seek legal advice before you start the mediation process so that you enter the process fully informed.
Is mediation compulsory?
While going through the process of mediation itself is not compulsory, a person must attend a family mediation information and assessment meeting (MIAM) before making an application to the court on most family related issues. This includes issues relating to children, property and finance following separation, dissolution or divorce. So, if it has not been possible to resolve disputes in negotiation through your solicitors, or in discussions between yourselves, then you must attend a MIAM before issuing court proceedings.
When happens at a mediation information and assessment meeting?
At the initial mediation meeting, lasting approximately one hour, you will discuss the issues with an impartial and independent mediator and decide whether these issues can be resolved via further mediation sessions.
When is mediation not appropriate?
There are some situations when mediation is not a requirement, such as documented and prosecuted domestic violence, or urgent matters relating to the welfare and safety of a child. There may be other reasons why mediation may not be appropriate. You may not feel comfortable about attending mediation with your former partner and in these circumstances you would need to attend a MIAM but not any of the follow up sessions.
What is the outcome of mediation?
Mediation is geared towards helping you reach an agreement amicably with your partner over the key issues. Once you reach agreement, the mediator can draw up a ‘memorandum of understanding’ document setting out what you have proposed to do. This document is not legally-binding but should be taken to your solicitor who can prepare the necessary legal documentation to ensure that what has been agreed becomes legally binding.
Do I still need legal advice?
A solicitor can advise you whether what you’ve decided to do in mediation can work in practice, whether it is fair in your circumstances, and whether the court is likely to approve your agreement and make it legally binding on you both.
How do I broach mediation with my partner?
It’s best to talk to your former partner to determine whether they are willing to go through mediation. It is a voluntary process, so your partner may decide not to attend.
The expert family law team at Harrison Drury can help resolve disputes by negotiating directly with your former partner, or with solicitors instructed to act on their behalf.
Harrison Drury has a specialist team of family law experts offering advice on issues surrounding divorce and other family law matters, including mediation. For more information please contact Janine on 01772 258321.