David Emmerson, Resolution
Family Mediation – How it works
Family mediation is a voluntary, confidential out of court process that helps you reach negotiated solutions to disputes about arrangements for children, maintenance, property, pensions and capital. Most often, mediation brings both parties together with a mediator in a comfortable room where you are free to discuss matters in a relaxed atmosphere.
It works because the mediator, a neutral and impartial third party, and the process itself encourage people to have a voice and speak freely. The mediator will also ensure that you listen, sometimes in a way you have not done before, to what the other party is saying, so that you at least understand what their issues are. You do not necessarily have to agree, but it certainly helps when you understand.
Information is gathered and verified so that each party’s financial position is clear. The mediator fixes an agenda with you and problem solves all the issues so that a fair and workable outcome is achieved.
Naturally, both parents will believe children are the most important factor. However, parents can often have differing views as to what is best for their children and what the arrangements should be for the children to spend time with each parent. In mediation, it is important that the views of each individual child are taken into account. This can be done in a number of ways, such as having a mediator specifically trained in children issues speak individually with the children on a confidential basis. The children’s views are then fed back into the main mediation. In many cases, this is not necessary but in certain cases it can be vitally important. This approach does not mean that the children themselves are making decisions, but simply that their views, uncomplicated by the pressures of speaking with either parent, are known and taken into account.
Role of the mediator and the lawyer
In some cases the mediator may also be a trained family lawyer, but while mediators can provide key information about what the law is, they cannot give legal advice specific to your situation. It is very important for each party to have the benefit of independent legal advice from someone like a Resolution accredited specialist who will explain both what the law is, but also importantly how it applies to each individual’s particular case. Whereas family case law and statutes can be found easily on the web, the internet cannot tell you how the law applies to your circumstances.
Another advantage of mediation is that the parties can agree to bring in the expertise of a specialist to help resolve issues. This might be instructing a valuer to value a company, business, or property. It could be bringing in a pensions expert to work out what the best way for both is to reschedule pension investments or an independent financial advisor who can help you fix budgets. Other experts can include divorce coaches and therapists where one or both parties are finding the emotional side of separation particularly challenging.
Costs and time
The costs of mediation is significantly less than the costs of a contested court process, even if you use a solicitor to support and assist you throughout. The length of the process varies because the number of sessions really depends on how complex the issues are. It is not uncommon for matters involving children and finances to be resolved in two to four sessions, which might be spread over a two to three-month period. This compares very favourably with a fully contested court process, which can often take 12-18 months.
Mediators are trained to deal with an imbalance in bargaining power or indeed bargaining skills. However, cases with relevant safeguarding and domestic abuse issues are not suitable for mediation.
At times, mediation sessions can be intense, challenging and even upsetting, not least because these issues are invariably very important to both parties. It is the mediator’s role to ensure that the sessions never get out of hand and that time is allowed for parties to compose themselves. Still, the tension that can arise from mediation is nothing compared with the pressure and anxiety that a contested court case can bring with the prospect of giving evidence, being cross-examined and someone else making a decision about your children and your finances.
Research, including Mapping Paths to Family Justice, and statistical information show that most mediations resolve issues successfully and that the vast majority of participants are happy with the outcomes and the process.