Everything you need to know about mediation

18 January 2023
Everything to Know about Mediation Blog Image

What is mediation?  

Mediation offers a forum for the discussion and resolution of the issues that arise from a relationship breakdown, from financial matters to child arrangements.  Mediation is voluntary and empowers you to make decisions for your family together, rather than having decisions imposed on you within the court process.  It usually involves participants meeting in the same room with the mediator, either face to face or remotely.   

What are the benefits of mediation?  

Mediation enables you to reach a solution that suits your family’s specific needs and requirements, which may not necessarily be what a court might impose.  It offers a dignified and civilised approach to separation in a private and secure setting.  Most of the work is carried out between you in meetings and you set the agenda and the pace.  When there are children they will be at the centre of all discussions and decisions and the process can aid better communication between parents.  There is also the opportunity for the children’s wishes and feelings to be heard, if appropriate in the circumstances.  

What issues can be covered in mediation?  

Mediation is flexible and the agenda is largely set by you, but the following issues are commonly dealt with in mediation:

How does mediation work?  

Usually, the mediator will arrange for both participants to attend a Mediation Information and Assessment Meeting (a MIAM).  This meeting is an opportunity for you to share information, which might include your hopes and any worries around the mediation process, with the mediator.  The mediator will explain how the mediation process works and take you through the key points in the Agreement to Mediate, as well as making sure that you understand your options.  

If everyone, including the mediator, agrees that the matter is suitable for mediation then a joint meeting will be arranged.   

What happens in a joint mediation session?  

The Agreement to Mediate will usually be signed at the start of the meeting and then the mediator will facilitate and support a discussion around the issues identified for resolution.  They will listen to you both and help you to identify any goals or concerns.  They will ensure that you have both had an opportunity to speak and be heard and ensure that decisions are made jointly and fairly.  Helpful legal information can be provided and your mediator will highlight when you may need further independent advice, such as legal or financial advice.  

Can I be held to discussions within the mediation process?  

The discussions in the mediation process are ‘without prejudice’, which means that neither person is bound to any proposals until they make the decision, usually after taking legal advice, that they want to be bound by them.  The ‘without prejudice’ status of discussions is integral to the mediation process as it allows both of you to speak freely and explore options without worry that you could be held to anything later.  ‘Without prejudice’ discussions should not be referred to outside of the mediation process.  

You should be aware that financial disclosure is not ‘without prejudice’ and can be relied on outside of the mediation process.  

How is the outcome of mediation recorded?  

At the outcome of mediation your mediator will prepare the following:

  • A ‘without prejudice’ Memorandum of Understanding, which records the proposals that have been reached.
  • If finances have been addressed, an Open Financial Statement, which records the financial information that the proposals are based upon and lists the disclosure that has been provided as part of the mediation process.
  • If child arrangements have been discussed, a Parenting Plan.    

Will the mediator provide legal advice?  

Although many mediators also work as family lawyers, legal advice cannot be provided within the mediation process.  Your mediator can however provide legal information, for example, information about the legal process.   

Do I need a family lawyer if I am mediating?  

Whether or not to instruct a family lawyer to advise you alongside the mediation process is a personal choice.  You may find that you feel more confident in the mediation if you have taken some advice.  If the mediation is in relation to finances as part of a divorce or separation then you would usually need a solicitor to convert the proposals from mediation (recorded in the Memorandum of Understanding) into a consent order.  

Can my solicitor come into the mediation?  

Sometimes solicitors are involved in the mediation meetings, usually under a model known as hybrid mediation.  You will find more information about hybrid mediation here.  

What financial information do I need to provide?  

If you are mediating about financial matters then you will usually be asked to provide financial disclosure, so that both participants and the mediator have a clear understanding of the financial situation. The process and level of financial disclosure required will be discussed in the mediation process and will sometimes vary from case to case.  

Can the mediator meet with the children?  

Your mediator will discuss whether or not it would be appropriate for any children over the age of 10 to have their voices heard within the mediation process.  If so, the mediator will meet with the children or arrange for another suitably qualified professional to meet with them.  This is known as child-inclusive mediation.  It is important to note that the children will not be asked to ‘pick sides’ or make decisions.  Instead, the children are offered an opportunity to speak to the mediator freely and confidentially and the child will decide what, if anything, they want to be fed back to the parents.  You will find more information about child-inclusive mediation here. 

Is mediation compulsory?  

Mediation is a voluntary process.  However, before issuing a court application the applicant is expected to have attended a MIAM so that they can explore whether or not mediation might be suitable for resolving their dispute.    

What are the costs and timescales of mediation?  

Each mediation, like each family, is different.  That said, on average mediations tend to require between three and five joint meetings of around 90 minutes each, although more complex situations may require more or longer meetings. Your mediator will carry out preparation work between meetings and prepare the outcome documents at the end of the process.  We charge for mediation on an hourly rate and can provide more details about likely costs on request.  

When would mediation not be appropriate? 

Mediators have an obligation to ensure that the process is suitable before a joint meeting takes place.  Mediation may not always be appropriate, for example if someone’s safety might be at risk, if a participant is not willing to provide full financial disclosure, if there are concerns about high levels of conflict or if there is an imbalance in power or information that cannot be adequately addressed within the process.   

Can mediation work in a high-conflict case?   

Mediation can work in a high-conflict case, but your mediator will think very carefully before proceeding to satisfy themselves that the process will not exacerbate the conflict or place anyone at risk of harm.  It is sometimes helpful to include a Family Consultant, who come from a therapeutic background and specialise in working with separating couples, to support the mediation process and this can be particularly valuable in high-conflict cases. Hybrid mediation can be a useful model when there are concerns about high-conflict.

Is mediation always face-to-face?  

Mediation generally takes place in person or via video call (we use Zoom).  Sometimes it will be agreed with the mediator that although the case is suitable for mediation, it would be better if the participants do not meet face to face (in person or by Zoom) or speak directly.  In these circumstances, shuttle mediation might be possible.  This involves the mediator meeting with the participants in separate (real or virtual) rooms and moving between them to help them find a resolution.  

What training do mediators have?  

At Edward Cooke Family Law all of our mediators have been trained by Resolution, the national organisation of family lawyers committed to working with families in a constructive way.  We are all registered with the Family Mediation Council (FMC), which means we are accredited or working towards accreditation with the FMC.   

What is co-mediation?  

Sometimes, your mediator may work together with another mediator, or another professional from a different profession such as therapeutic or financial.  

For more information on our mediation services, view our mediation pages, or if you need further advice or information, please do not hesitate to contact one of our specialist family law solicitors and mediators.