We’ve blogged before about the different options available to those going through the process of working out disagreements over future arrangements after divorce or separation. In brief,
- you can negotiate, either directly between yourselves or by using your solicitors to present arguments in writing or at meetings;
- you can use collaborative law, where solicitors and clients agree not to take the dispute to court and all work together to find a solution;
- you can use an arbitrator who will decide as much or as little of your case as you want to refer to her or him after a process on which you agree;
- you can take the dispute to court and ask a judge to decide, either with or without legal advice and representation; or
- you can use a mediator to help the two of you discuss your disagreements and devise a way forward that works for everyone.
You can read more about these different options here.
Today in our blog we’re focusing on mediation, which has the potential to be the quickest and lowest-cost way of reaching agreement on the financial and children-related arrangements that need to be made on divorce. There’s a persistent rumour that the government now makes all former couples try mediation before they are allowed to go to court about divorce issues. This isn’t true: even if it wanted to, the government couldn’t compel people to come to mediation because mediation is by its very nature voluntary. Nobody can be forced into it: you can’t force people to agree. People only come to mediation if they want to sort things out.
What the government has done is to require that before a person can make an application to court, they have to make an appointment with an accredited (specially-qualified) family mediator for a Mediation Information and Assessment Meeting (a MIAM). This appointment takes about 45-60 minutes. It allows the person going through divorce some confidential time and space to talk about what is going on, hear about all the different ways that a dispute can be resolved, and make an informed decision about the next step they take – whether it’s to court, to mediation, or another route. The other person in the dispute is not involved at the MIAM stage, although if the person attending is open to the idea of mediation the mediator can contact them afterwards to invite them in for a MIAM too. There is no pressure to choose mediation at the end of the meeting.
The government would like more divorcing former couples to go into mediation rather than going to court. Primarily, the courts are overwhelmed, so the more cases that can be resolved by other means the better the courts can function with the more difficult cases that are left, and the less money the system needs. The big carrot for separating former couples to use mediation is that there is still legal aid available for family mediation (subject to a means test), whereas unless there is clear evidence of domestic abuse and you have an available local lawyer with a Legal Aid franchise, all legal help with family proceedings in court must be paid for privately. In mediation, legal aid will fund both the initial meeting for both people involved even if only one is eligible for legal aid, and the first mediation session for both. Thereafter, it will pay the full fees for the person eligible for legal aid, or for both if they both are.
People often find it difficult to imagine what mediation might be like. Mediation usually takes place in a room where chairs are arranged around a low table, and there’s a flip chart for the mediator to write on so everyone can see. There will usually be one mediator, but sometimes two if there is a special reason for having more than one, or if one is in training. The whole setting is quite informal, certainly compared to the court, as the aim of the process is to agree a solution rather than having one imposed. Unless there is a particular reason why this should not happen, the two of you and the mediator(s) will usually all be in the same room at the same time.
At the first joint session, the mediator will usually take both of you through a document called the ‘agreement to mediate’ which sets out the fundamentals of the process you are using, and what is expected of each of the participants. This is an important part of the process as it binds the participants in. Then, a sensible next stage is to ask each of you, in turn, what you are hoping to achieve from the process. Your answers to this question will help to build the agenda for the mediation, and will give each of you an idea of what is uppermost in the other’s mind. You will, with the mediator’s assistance, then decide in which order your concerns should be tackled. The mediator will then facilitate discussions between you about all the issues, and help you decide what information you both need to gather and what you need to think about so that you can reach the decisions you need to make.
A great strength of mediation is that it enables you to consider all the different options available before committing to a decision about anything. Because discussions are confidential and cannot be reported to a court if the mediation does not lead to an agreement, both people can speak freely and deals can be struck. Nobody will tell you what to do: you agree it yourselves. The mediator will offer suggestions if you want, and will help you test out any ideas, but will remain impartial and non-judgmental throughout. You can be sure that if the end result is one you have worked for together and that is tolerable for both of you, it is more likely to stick. There are tips on how to get the best out of family mediation here.
The other great advantages are in terms of cost, convenience and speed. To get arrangements decided by a judge, you might have to wait up to a year or even more from making your court application, and go through other interim hearings before, at which you will both need to be present and over which you will have little control. Mediation sessions usually take place every three weeks or so, at a significantly lower cost per person than for court representation, and can be arranged to suit your schedule. If you have any questions about mediation or would like to book an appointment to discuss your options, you can call CFLP’s family mediators Suzy, Adam, Tricia, Sue and Gail, on 01223 224384.