Hero Lomas – Senior Associate & Mediator
The culture of English family law practice continues to evolve: away from litigation and in the direction of constructive forms of dispute resolution.
The courts increasingly expect parties to consider mediation and other alternative forms of dispute resolution. There are already rules in place which mean that judges can penalise a party in costs if they have refused to consider alternative dispute resolution.
A skilled mediator facilitates discussion between the parties and assists them in reaching an outcome which will be approved by the court. Mediators are not supposed to tell the clients what an appropriate outcome is (even though they might have one in mind themselves). Parties usually find it helpful when I tell them what sort of factors the court would take into account in their particular situation. In a recent mediation for example I told a couple that money inherited after separation would usually not be shared with the other party unless it was required to meet their needs.
Mediation is a flexible process and can be used for all sorts of issues arising from family breakdown including money and issues relating to children. All negotiations are without prejudice which means that options can be explored without fear of them being used outside the mediation process or at court if the mediation later fails.
Mediation is not suitable in all cases. If the relationship has been abusive or if there is a power imbalance this may mean mediation would not be the right form of dispute resolution for the couple. Abusive behaviour is not limited to physical violence and mediators need to be very cautious in the initial individual meetings and throughout the process to screen for abusive behaviour which could lead to parties feeling coerced into agreement.
Mediation is a voluntary process and people must feel free to enter into mediation voluntarily without risk of any kind. Sometimes fear of the other spouse putting pressure on them to reach an agreement or not having someone protecting their own interests can make people reluctant to agree to mediation. A skilled mediator should ensure that there is a level playing field so parties feel confident to make decisions without feeling pressurised. The most common power imbalance, where one spouse knows very little about the family’s finances, can be dealt with by ensuring all financial information is discussed together, with questions raised by the mediator to check both parties have a full understanding of the position before discussions about a potential outcome can begin.
Mediators cannot provide advice which is specific to either party although they will provide a lot of legal (and other) information. The couple will be encouraged to seek the advice of a solicitor in parallel to the process and certainly before an agreement is entered into.
After a short, no obligation phone call with the mediator both parties will have individual sessions.
The mediator assesses their suitability for mediation and tries to tease out what the issues are and whether there is anything they do not feel they can discuss openly in the mediation. Mediators cannot keep one party’s secrets so each person needs to be warned about that at an early stage.
A first joint meeting is arranged. Most meetings are one and a half to two hours long and at any point the mediator may speak to one or other of the parties alone. Some mediations (called shuttle mediations) are conducted with the parties never being in the same physical or virtual room.
If the mediation relates to finances both parties will need to produce information and documentary evidence about their finances. This will be analysed by the mediator before being sent to the solicitors for consideration. When further information is needed, for example more estate agents’ valuations of a property, the mediator can deal with this quickly with the parties directly rather than solicitors needing to write to each other with the consequent delay and cost.
Once a financial proposal has been determined the mediator will draw up a memorandum of understanding upon which both parties can take advice from their solicitors. If the mediation related to children issues a parenting agreement could be drawn up or a consent order if the parties are engaged in litigation relating to the children.
Since the onset of the pandemic, mediators have become very used to conducting mediations by video link. Clients often prefer video mediation as they do not need to be in a room with their estranged husband or wife. Video mediation works smoothly and is particularly suited to expat families. An unanticipated benefit of video mediation is that the mute button allows the mediator to control the dialogue and ensure that both parties’ voices are properly heard.
Advantages of mediation
Costs – Mediation is usually a less expensive way of engaging in constructive discussions arising from divorce and separation. The costs are a fraction of the costs of litigation. Most issues are resolved within three to five sessions. Both financial and children matters could be resolved in around 10 hours of the mediator’s time or less.
You are in control – If you decide to mediate you will be the one making the decisions rather than having a judge impose an outcome on you. This has the effect of making people more likely to keep to the deal they have agreed which is true both of financial agreements and agreements relating to the children.
Quicker resolution – Mediation is becoming increasingly popular due to delays and the backlog in the court system. Mediation can be organised within days where necessary and arrangements for children can be made quickly. This might be important where school holidays are coming up and the parents need to decide how the children should split their time.
MIAM – The court encourages parties to mediate wherever possible and before anyone can issue a court application relating to child arrangements or finances the court require you to attend a Mediation Information and Assessment Meeting or MIAM. You will have to meet with a mediator who will, if appropriate, contact your spouse or partner to invite them to mediate.
Flexible process – The parties can discuss anything they want. Mediation can be a helpful forum to discuss and agree upon how and when to tell the children about the separation for example. A court will simply not be involved at that level.
Mediation is usually the most humane, constructive and cost-effective way to resolve issues relating to relationship breakdown. I encourage almost all my clients to try it.