Last week we wrote about the alternatives to court as our way of supporting Resolution’s third dispute resolution week. This week, we are going to take a closer look at mediation.
The news headlines surrounding it tend to give a bit of a mixed message. On the one hand we have the Family Justice Minister, Simon Hughes, saying recently that mediation is the sign of a civilised society, and that the Government is “committed to making sure that more people make use of it, rather than go through the confrontational and stressful experience of going to court”. On the other the published figures indicate variable take up of mediation. Since the cuts to legal aid in family litigation were enacted, figures for take up of publicly funded mediation have dropped sharply, despite the continued and expanded availability of free mediation sessions from accredited providers where people are eligible. Where it is privately funded, the take up is better, but it is still not the success story it should be.
Since April 2014 it has been compulsory for people to attend a mediation information and assessment meeting (MIAM) session before they can apply for a court order about finances on divorce or children matters. So what is it that is stopping couples going on to use mediation to resolve their disputes?
There is still some misunderstanding as to what mediation actually is. It is not a form of counselling or therapy, but rather a negotiation to solve a dispute guided and steered by a neutral facilitator. It is cheaper and quicker than litigation, and can be used to sort out both disputes over arrangements for children and over financial matters, or both.
Perhaps the most obvious barrier to mediation is emotional: if you were all getting on famously and there were no problems, then there would be no need to mediate. So the fact that relations are strained will not make the prospect of sitting down in a room with the person who is causing you grief very appetising. Emotions will be running high, and might include shock, guilt, anger and fear. It requires bravery to sit around a table, with your partner, and a relative stranger (the mediator) and discuss your future. There is no hiding behind lawyers’ correspondence. And courage can be hard to come by at times of emotional distress.
It also takes two to mediate, and two to want to mediate. Sometimes one might want to and the other does not, and sometimes because one wants to the other may refuse. Some might want the support of a solicitor and believe that mediation denies them that. That is not the case, as it is perfectly possible to take legal advice, both before attending mediation and whilst the process is ongoing; in a lawyer-supported mediation, you can even take a solicitor with you. You do not have to go into sessions uninformed or unsupported.
If tensions are running high, then you might be concerned about sitting in the same room as your former partner. Strictly speaking you don’t have to. Mediation can be done in two rooms with you separate throughout, through a form of “shuttle diplomacy” with the mediator moving between. In cases where there are safety concerns but it is still safe to mediate, this can be a good answer, and in other circumstances it can be a good starting point, but if the goal is to make sensible, swift progress this tends to happen better in a same-room meeting. It is rarely as bad as you might expect. The mediator is used to handling tense situations, and trained to assist you both to move negotiations forward.
If you are concerned that your former partner might be dishonest, rest assured that mediation is not an easy option: unless agreed otherwise, you are both under the same obligation to provide disclosure as you would be in the court process. If you have real concerns about dishonesty, then do speak to a solicitor about other options.
You may have concerns that you would be vulnerable in mediation if you’ve never dealt with the family finances and don’t understand them, or if you lack confidence in dealing with your former partner. The role of the mediator is to ensure each party is heard and understood, and to ask questions where this helps move the process on by increasing everyone’s understanding and confidence to a point where an agreement is possible. There is no place for bullying in mediation.
Some people are concerned that if the mediator has been chosen by their former partner then they might not be neutral or independent. It’s important to understand that an initial approach made by one party does not undermine that. Someone has to go first, but the mediator will investigate with both of you your concerns and priorities.
We also hear concerns expressed that because the process is voluntary, any agreement reached might not be honoured. In our experience, most people do honour agreements reached because they work hard for them and only agree what is tolerable (in contrast to a court order, which some people might find intolerable). If you have concerns in that regard, it is possible to have the agreement reached made into a court order by consent. Where the issues are financial, this is particularly important. A lawyer mediator, as we are at CFLP, can ensure you have the right information to make arrangements that suit you and will also be approved by the court.
It seems fairly ingrained in our national psyche that when family problems arise, the only thing to do is to go to court to sort it out. Mediation is not the first thing people think of. We hope that with greater awareness of the benefits of mediation and the skills of mediators, more people will see that mediation is a good way to sort out their separation.
If you would like to talk to any of us about mediation, please get in touch. Gail, Sue and Adam are trained mediators, and Tricia is a community mediator. We are on 01223 443333.