Alternative dispute resolution: mediation

It is common that the time it takes to get a hearing listed proves frustrating for couples but the court is not the only option available for those looking for legal assistance in family matters.

What is mediation?

Mediation is the process whereby couples meet with a mediator who will help them resolve disputes over relevant issues, including financial provision or arrangements for their children.

The mediator will be completely neutral and will aim to support the couple in coming to an agreement. It is becoming increasingly common for mediators to be asked to evaluate the strengths and weaknesses of a case or evaluate a particular issue.

A mediator will encourage the couple to reach an agreement and will act as the go between for the two of them.

Do I have to attend mediation sessions?

The family courts encourage out of court settlements. The Family and Children Act 2013 provides that attending a Mediation Information Assessment Meeting (known as a MIAM) is mandatory. This does not mean that a couple must attend a full mediation programme as the MIAM is essentially an introduction to the mediation process.

If the mediator or either party feel that mediation will not be suitable, they will be exempted and may proceed to court rather than rely on the mediation process. Either way, the courts are impressed with parties who are open to resolving matters through alternative dispute resolution and end up using the court as a last resort.

What happens at a mediation session?

If the parties have legal representation, the mediator will speak to the lawyers ahead of the mediation session to ascertain the key issues. If the parties do not have legal representation, then the mediator will speak to the parties directly.

The aim of this conversation is to minimize time being wasted at the mediation session itself. At the session itself, the mediator will explain the process to the parties, typically at a joint session. Thereafter, the mediator will have private discussions with each party with the aim of helping them negotiate a settlement.

Will I be bound by what I say in mediation?

No. It is common for the mediation agreement to treat all discussions at the mediation session as confidential. The legal term used for these discussions is ‘without prejudice’ which means that the parties will not be put before the court as evidence.

Advantages

• Can lower costs if the parties are willing to discuss their issues.
• Relatively informal environment and procedure. The couples need not have representation and the process can be tailored to meet the parties’ needs and work for their issues.
• The majority of discussions with a mediator are confidential, unless the matter goes before the Court to formalise the agreement, the parties agree to waive confidentiality or matters discussed are criminal matters.
• The process encourages amicable relations between the couple, with the parties communicating directly with each other with the assistance of the mediator. If this is not possible because, for example, the couple are not able to be on speaking terms, it is possible to arrange the process in a way that the couple can be in separate rooms. Either way, the mediation process can often result in communication problems being overcome.
• Mediation has quite a high success rate and is low risk. The outcome is often more palatable to the clients, as they have had a strong role in negotiating the outcome.
• Mediation is confidential.

Disadvantages

• There are a number of cases where mediation will not be the most appropriate:
  • If one party is not disclosing information then mediation will not be the best forum for the financial issues particularly as the mediator cannot order disclosure;
  • Where a point of law needs to be resolved in the case;
  • Where the parties involved in the dispute are completely unwilling to cooperate with each other;
  • Where allegations of fraud have been made

• If the parties are not willing to make an effort to engage in the mediation process or if the couples are unable to come to an agreement, the mediation process can add time and cost to the process.

• If the couples do not have representation, they may be at risk of agreeing to terms which are unsuitable or impractical.

• Mediation is not binding. It is common to include a clause in the mediation agreement stipulating that the agreement should be treated like a contract between the parties. Some couples will opt to give effect to a mediation agreement by way of a court order.