Mediation – how and when it works

There’s an old saying that when you are at the edge of a cliff, sometimes progress is a step backwards, writes Susie Burley of the KWW family law team.

You could say that’s a good metaphor for mediation, an approach to resolving disputes we as a family law specialist would always recommend to our clients while acknowledging there are circumstances in which it may not be the most appropriate course of action.

What is mediation?
Mediation is a process during which individuals in a family dispute can negotiate about future financial provisions or child contact arrangements.

Sessions are facilitated by a trained mediator, a ‘neutral’ third party who looks to encourage communication and find ways of identifying the issues that need to be resolved. Think of it as the taking of a backward step – by all sides – to calm things down and find a clear new path ahead.

It should be noted that agreements reached through mediation are not legally binding or enforceable by a Court. Nonetheless, previously made agreements can be relied on by a party during court proceedings when a judge is considering making a Consent Order.

Why you should mediate
Since 2014 it has been a requirement for anyone applying to the family courts to attend a Mediation Information Assessment Meeting (sometimes referred to as a MIAM). This is an initial meeting where an assessment will be made as to whether mediation is appropriate in your circumstances.

Notwithstanding the court requirement, mediation can in some circumstances be a more successful and cheaper way of agreeing future arrangements.

Talking about issues and disagreements in a neutral, non-contentious setting can reduce the emotional toll that family proceedings can have. It is important for parties to appreciate that court proceedings can be stressful and expensive, particularly if parties are unwilling to co-operate with the pre-court discussions through their solicitors.

When mediation might not work
Mediation is not appropriate for everyone and there are circumstances in which you may be exempt from attending a MIAM. The acceptable exemptions are set out in section 3 of the Form A (Notice of Intention to Proceed with a Financial Application) You will not have to attend if:

  1. The proceedings are made on an urgent/emergency basis or a without notice basis
  2. There is evidence of domestic abuse in the relationship
  3. There are child protection concerns
  4. If you have attended a MIAM or some other form of non-court dispute resolution in the four months prior to the application
  5. You do not have contact details for the respondent
  6. The applicant or the respondent have a disability or other inability which would prevent their attendance at a MIAM unless appropriate facilities can be offered by an authorised mediator
  7. If there are no available mediation appointments within 15 business days in a 15-mile radius of the applicant’s home
  8. If the applicant or all of the respondents are not resident in England or Wales.

It is also important to remember that mediation is not legally binding, so if an agreement reached in mediation breaks down, court proceedings may have to be issued in any event. If this is something you are concerned about, mediation may not be successful in the long-run as it requires a commitment by both parties to uphold the agreement reached.

It is worth seeking advice from us at KWW as to whether mediation is appropriate in your circumstances.

What to consider before going to mediation
If you decide mediation is an appropriate first step to take, you should understand the purpose of mediation is to negotiate. This means you should not expect an agreement to be made based on what you wanted prior to the session.

You should also ensure you do not just consider the short-term arrangements that need to be made in relation to finances or children but also think about the future.

For example, financial provisions may need to be made for you further down the line, by considering whether pension sharing would be an appropriate agreement to make. Or, alternatively, how contact should change as children get older and have the ability to travel independently.

If you are ensure about what outcome would be best for you, you should seek advice from a solicitor. At KWW we offer an initial consultation (fixed price cost of £200 + VAT) where such issues can be briefly addressed and we can give a view on the sort of agreement a court may make if the proceedings were before a judge.

What happens if mediation is unsuccessful?
If mediation fails, the next step will usually be to issue court proceedings. If you have not already done so, you should consider instructing solicitors to represent you. This does not mean negotiations have to stop.

Discussions between parties can continue through solicitors, and it may be possible to agree on a Consent Order. This is an Order drafted by solicitors following negotiations between the parties. It is then lodged with the court for a judge to consider and in most circumstances approve and seal, ensuring it is legally binding.

If no agreement can be reached at this stage, it may be left for a court to make an Order at a court hearing.

Who to contact to arrange mediation
If you have been invited to mediation and you are unsure it’s right for you, you should seek advice. You must be satisfied that by entering mediation you will not end up in a weaker negotiating position, resulting in unfair or imbalanced agreements being made.

If you are looking for a mediator in the local area you may wish to contact MiD Mediation and Counselling, 114 High St, Hampton Hill, Hampton TW12 1NT. Tel: 02088916860

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