Resolving disputes through family mediation — your questions answered

Family mediation can be an effective alternative tool for disputing couples to reach agreements outside of court.

For Family Mediation Week (27 to 31 January), we sat down with Kirsten Tomlinson and Danielle Hutchison in our family law team, to answer some of the common questions we’re asked about the mediation process.

1. What is family mediation?

Family mediation can help separating couples reach decisions together about various issues that can arise both during and after the separation and/or divorce process. The couple will meet with a specially trained mediator who will try and help them to resolve any disputes.

Family mediation is what lawyers refer to as an option for non-court dispute resolution (NCDR), also known as alternative dispute resolution (ADR). In simple terms, this means we can avoid issues being dealt with via litigation and court proceedings where a judge can make the final decision — if a separating or divorcing couple can’t reach an agreement themselves.

Family mediators can be trained in dealing with particular issues, for example finances and childcare arrangements.

Once an agreement is reached during mediation, the mediator will record in writing the details of the discussion and the overall outcome for the couple. This record will be sent to both parties to keep.

2. What are the different types of family mediation?

There are various types of mediation, which can suit all types of family situations and circumstances, as set out below:

Sole (‘traditional’) mediation

This is where both parties meet with the mediator at the same time to discuss the issues in the case and try to reach an agreement. This can take place in person, or remotely via video call. The mediator acts as an independent third party to try to assist the parties in reaching a resolution, but they cannot provide legal advice. 

Shuttle mediation

This is similar to traditional mediation set out above, however the parties are placed in separate rooms (either physically or via video call) and don’t have to come into contact with one another or communicate. This is particularly beneficial where the relationship between the parties is hostile. Some mediators are specially trained to manage these situations and to enable mediation to be successful despite hostility between the parties.

Hybrid mediation

This is where both parties are able to have legal representatives at the mediation session to advise alongside the negotiations. Usually, both parties stay in separate rooms and the mediator moves between each room to negotiate. Parties’ often feel more confident negotiating when they are able to have legal advice and the support of their solicitor on the day. 

Child inclusive mediation

If the dispute is in respect of the arrangements for the children, then there is an option for children to attend mediation and for their views to be considered as part of the negotiations. The appropriateness of child inclusive mediation depends upon the age of the child and other factors such as any welfare concerns and risk of harm. However, for older children (usually aged 12 and above) it can be very beneficial for them to feel that their wishes and feelings are being heard and considered in respect of the arrangements for their care.

3. How much does family mediation cost?

Mediators will charge their own fees for each session. The couple usually share the costs of mediation or they may decide that one party should pay, for example if one party doesn’t have the financial means.

There is support available to enable couples to access mediation. For example, the Government provides a voucher scheme that awards a one-off contribution of £500 towards family mediation services if you are eligible and meet the criteria. This only applies to mediation for issues relating to children matters or both finances and children at the same time. Only mediators authorised by the FMC can offer this voucher scheme.

 4. What happens at a Mediation Information Assessment Meeting (MIAM)?

The first step in all types of mediation is for both parties to attend a Mediation Information Assessment Meeting, known as a ‘MIAM’. Both parties shall attend an individual MIAM, with a qualified family law mediator who will explain the purpose of mediation and how it can be used to resolve disputes without resorting to litigation. The MIAM usually lasts around an hour and is an opportunity for the mediator to obtain some background information and for the parties to each set out what is important to them and any concerns that they may have in respect of the issues in the case or attending mediation. The mediator shall then consider whether mediation is suitable in the circumstances and suggest the best type of mediation for them to reach a resolution. For example, in serious cases of domestic abuse, the mediator may not deem it appropriate for mediation to take place.
 

The MIAM must be attended by both parties before a decision is made for mediation to proceed or not. If mediation will take place, a mediation session will be arranged. If mediation will not take place, then court proceedings will be issued instead. In the latter scenario, the mediator will sign a form to confirm that a MIAM took place and either failed or that an exemption applies. This will allow the applicant’s court application to proceed at court.
 

5. Do I have to sit in the same room as my ex-partner/spouse during family mediation?

Most mediation sessions will involve separating couples sitting together in a room with a mediator. However, if one party feels uncomfortable and feels the sessions would be more productive if they were separate from their ex-partner/spouse, then some mediators can offer ‘shuttle mediation’. As outlined above, this is where both parties sit in separate rooms and the mediator will act as a go-between.

Some mediators may offer remote mediation. This option has grown in popularity since the COVID-19 pandemic.

6. Can a mediator give us legal advice?

No, a mediator isn’t able to give legal advice to either party attending mediation. They can discuss what the law is in general terms, but they shouldn’t go beyond that. They’re to remain completely independent and they shouldn’t take sides. The mediator’s main aim is to try and proactively assist with gathering information, identify issues and help the disputing parties to problem solve and reach a mutual agreement.

Each party should seek separate independent legal advice during the mediation process.

7. Is an agreement that is reached through mediation legally binding?

No, it’s important for a separating couple to understand that if an overall agreement is reached at mediation, it’s not legally binding.

There is a risk that either party could change their mind at a later stage and go back on the terms of the agreement reached during mediation.

8. How do I make an agreement legally binding?

It’s advisable for one of the parties to instruct a family lawyer to prepare a legally binding consent order.

You can obtain a financial consent order and a child arrangements order by consent via the court. You don’t need to attend court for the order to be binding — it can simply be done on paper and your lawyer will deal with this on your behalf.

9. If we don’t reach an agreement at mediation, what can we do next?

In some cases, separating couples are unable to reach an agreement — despite the help of a mediator.

If it’s not possible to agree matters at mediation, legal advice should be sought to find out what options remain. If a separating couple are unable to reach an agreement between themselves at mediation or with the assistance of a lawyer, then it’s likely that a court application will be inevitable. However, often an agreement can be reached with the benefit of legal advice and negotiations between lawyers.

If an application is made to court, then ultimately the court will make the final decision in relation to any dispute involving finances and/or childcare arrangements. This process can be time consuming, stressful and expensive.

Before anyone can make an application to court, the applicant (the person making the application) must first attend a Mediation Information Assessment Meeting (MIAM) with a mediator unless there is a valid exemption.

10. Can I refuse to attend mediation?

Engaging in some type of NCDR is expected in all cases unless there is a “good reason”. If one party unreasonably refuses to engage in NCDR then the Court may decide to order sanctions for the non-complying individual.

However, it’s not going to be suitable for every case so there are exemptions.

11. If we end up in court, can I tell the Judge about what was discussed during mediation?

No, you cannot tell the Judge about what was discussed at mediation. Mediation is private and the information and details can’t be disclosed to the court. The discussions are what lawyers call ‘without prejudice’. The benefit of without prejudice discussions is that you and your partner can have honest and frank discussions without some of these points (or indeed concessions) being raised in court later if an agreement isn’t reached. Due to mediation’s private and confidential nature, the mediator can’t disclose the details and information to your family lawyer without your express permission. You can disclose the details and any agreement reached to your family lawyer — but you must grant a mediator permission to do the same.

Talk to us

If you need support and legal advice while going through mediation or for more information about other non-court dispute resolution methods, our family law team can support you through the process. We can help signpost you to the right mediator for your situation.

Talk to us by giving us a call on 0333 004 4488, sending us an email at hello@brabners.com or completing our contact form below.