26th January 2024

Family Mediation Week: Shedding light on positive solutions in family breakdowns

Jo Carr-West

Partner

The dark, cold nights of January with the holiday season a distant memory, can be a tough time for families on the brink of separation. Long-running disputes that might have been simmering in the background for months often reach a nadir in January, when divorce applications are higher than average.

This is one of the reasons why Family Mediation Week, which concludes today, offers a valuable opportunity to raise awareness of the potentially enormous benefits of sitting down to talk with a partner in the presence of a neutral mediator.

Mediation has become an increasingly popular way of resolving family disputes, whether about children or family finances, for anyone involved in a family breakdown. For many, it helps them to reach an agreement about what should happen, with greater cooperation and less animosity than would be the case by immediately going to court.

Mediation has been actively encouraged by the government as part of a wider drive to assist families by diverting cases away from the courts and employing faster, more cost-efficient dispute resolution processes.

Since 2011 there has been an expectation that all parties to divorce proceedings, whether represented by lawyers or not, should at least attend a mediation information assessment meeting (MIAM) before issuing a financial application at court.

One of the main strengths of the mediation process is that it is confidential, entirely voluntary and freely negotiated. As a result, there is less stress but more control for families, frequently avoiding the inevitable hostility that can arise in protracted court proceedings.

Critically, mediation is also quicker and cheaper than litigation: in the majority of cases, you get results much faster than going to court and significantly reduce the costs.

Mediation sessions take place in a neutral venue with a mediator being present throughout whose role is to facilitate open discussions and guide the parties towards a settlement, including the necessary family arrangements for the future. Over the course of around four or five sessions lasting up to two hours, a wide range of issues arising from separation can be addressed. The agreed terms and principles of mediation are decided on during the first session, setting out an agenda and establishing common ground between the parties.

Mediators are not there to dictate the terms of settlement; rather, they help partners to evaluate different options to enable agreements in areas covering children, finances and property. They are not permitted to give legal advice; their role is purely to facilitate discussion effectively.

A particular advantage of mediation is that the creative flexibility of the process enables discussion about different options and for arrangements to be negotiated, even in situations of high conflict. Thoughtful discussion and compromise can take account of both parties’ needs, especially those of the children, enabling sensible resolutions about where they will live and when they spend time with their parents.

When negotiating a financial agreement through mediation, full disclosure is essential as it is within the court process. The mediator will require both parties to provide complete financial information in relation to all assets, liabilities and income so that a clear picture of the assets can be established to facilitate a discussion of how the finances should be arranged after separation.

In between sessions, the parties are encouraged to seek advice from their solicitors to ensure that they have all the relevant legal advice required to be able to conclude an agreement. After the sessions, a note may be provided to summarise the key points discussed and agreed together with agreements for the next session to enable the parties to discuss the process with their solicitors.

If a final agreement is reached, the mediator will draw up a Memorandum of Understanding, setting out the terms agreed. These terms remain confidential and are not binding unless both partners subsequently choose to commit to it, before which, taking solicitors’ advice is recommended. Reaching an agreement without having to resort to court proceedings considerably assists all concerned, which is one of the main purposes of highlighting the process in Family Mediation Week.

Aside from the process being more efficient and cost-effective, the most significant of these is undoubtedly that mediation has been consistently proven to reduce conflict and improve communication. By opening a calmer, less fraught means of discussing difficult issues, families are more likely to ensure that their children will be less damaged by a separation.