The Family Procedure Rules 2010 highlight that a Court should consider non-Court dispute resolution options to resolve matters such as, mediation. The rules include dispute resolution prior to Court proceedings commencing and a duty for the Court to consider these avenues even once a Court application has been made. It is also a duty of legal practitioners to inform their clients of all of the options available to them, focusing on out of court resolution with an application to Court being the last resort. Mediation is favoured for a number of reasons but to name a few:
- Mediation promotes communication between the parties
- Mediation encourages the parties to reach an agreement
- Mediation allows the parties to be in control of their dispute
- Mediation prevents the need for a Court to dictate what the outcome should be
- Mediation saves time and money for the parties and the Court
There is a common myth amongst solicitors that mediation removes the role of a solicitor and that the two are not mutually exclusive. However, mediation can be extremely beneficial in family proceedings and this blog will focus on how mediation can assist family solicitors.
When a couple separates and disputes arise, tensions rise. Parties can feel aggrieved, betrayed, angry, and upset at their former partner and often make comments and react in an unhelpful way out of sheer frustration. At the outset of a matter, it is a solicitor’s duty to listen and understand their client’s case and fully explore all options with them. The first port of call should be out of Court dispute resolution. Mediation can be a great way of improving the parties’ communication with one another. A lot of the time there are children involved in the matter and in these cases it is vital that the parties learn how to communicate as separated parents in order to discuss child arrangements. Even when there are no children involved it is helpful for the parties to be able to communicate effectively. The parties may have matters which need to be resolved as a result of their separation such as separating their assets or deciding who shall remain in the family home.
When parties learn to communicate this is extremely helpful for solicitors who often continue to represent their clients after mediation until the conclusion of the matter. This prevents unnecessary and lengthy correspondence back and forth between solicitors. This correspondence can become heated and create further animosity between the parties. If the parties are able to reach an agreement at mediation, this can all be avoided. Once an agreement has been reached, the solicitors acting for the parties would simply agree a final order which could then be sent to the Court for approval. The parties will have then reached an agreement they are both happy with, no one has dictated what they should and shouldn’t do and they have learnt how to communicate effectively with one another which will have a positive impact on their relationship in the future.
Are both a mediator and a solicitor required?
A mediator facilitates parties in reaching an agreement. They cannot give legal advice to either party and must remain impartial. In order to seek legal advice both parties would have to contact independent solicitors to act on their behalf. Whether this is required or not depends completely on the circumstances of the case. For example, if parties attend mediation to discuss a financial settlement on divorce and reach an agreement, the agreement reached at mediation is not legally binding. The parties (or one party) would have to instruct a solicitor to convert this agreement into a Consent Order which can be sent to the Court for approval. Another example is where parties attend mediation to discuss child arrangements. The parties can reach an agreement at mediation but this is not legally binding. There are also no consequences in the event that either party fails to stick to the terms of the agreement. If the parties are looking for a legally binding order they would have to convert this agreement into a Child Arrangements Order. In this case, the parties may wish to instruct a solicitor to make this application on their behalf.
Mediators often encourage parties to seek independent legal advice following mediation sessions. Where the mediator is a qualified solicitor they cannot represent one of the parties from a mediation session they have held. Both parties must seek legal advice elsewhere. Mediation sessions are often arranged through solicitor referrals. This helps create a strong and working relationship between solicitors and mediators. Both are seeking the same outcome which is to resolve the dispute between the parties.
Mediators have recognised the modern way of working and have adapted to enable parties to access mediation online. This is often by way of video call where the parties and the mediator join one call. Software allows the mediators to lock the meeting to keep the matter confidential and ensure no one else can join the meeting, hold parties in a waiting room so the parties do not join the meeting before the mediator is present and breakout rooms where the mediators can speak to the parties individually.
Online mediation means this service is a lot more accessible to parties and appointments can be made for those with busy lifestyles and schedules. This can often result in securing an earlier appointment than having to wait for both parties to be free to attend in person.
This is beneficial for solicitors as the quicker the mediation session takes place, the quicker the dispute can be resolved. This helps to avoid frustrated and disgruntled clients who do not wish to be involved in a long drawn-out process. Family disputes are highly emotional and can be very distressing so a quick resolution is always the utmost preference. In the event that a client wishes to make an application to Court to commence child arrangement or financial remedy proceedings, they will first have to attend a Mediation Information and Assessment Meeting (MIAM) to see whether mediation is appropriate. MIAMs can also be conducted online so in the event that mediation is found not to be appropriate, this can reduce the time between making a referral to mediation and an application to Court dramatically.
Hybrid mediation involves the parties’ independent legal representatives being present. This can also take place online via video call. The parties are in separate rooms (or virtual rooms), with their legal representatives and the mediator will have separate meetings with each party and their representatives. Hybrid mediation is often known as ‘shuttle mediation’ and can be helpful when dealing with vulnerable clients for example, where there has been previous domestic abuse in the case. Parties can often feel nervous about attempting a new form of dispute resolution and having to be within close proximity of their former partner. This can cause anxiety and in some cases be quite intimidating. By having their legal representative with them, this can often relieve some or all of the parties’ anxiety and they feel more comfortable having some additional support.
This form of mediation is very useful for family solicitors and can result in a swift resolution to complex matters. Hybrid mediation is particularly effective in matters concerning financial disputes on divorce. It is usual that prior to the Hybrid mediation, parties would simultaneously exchange financial disclosure. During the mediation session the parties and their representatives can analyse the financial information provided and commence negotiations in the hope of reaching a final settlement. This can later be converted into a legally binding Consent Order.
Mediation can be a very effective form of dispute resolution and can have some real benefits for solicitors and their clients mainly facilitating a quicker resolution of a dispute. Parties can benefit from improved communication with a former partner or family member and the parties remain in control of their dispute by deciding and agreement on the outcome themselves.
Mediators and solicitors should continue to work together closely, forming a strong working relationship which will allow them both to reach a common goal – resolving the parties’ dispute.