When you’re facing separation or divorce you’ll usually be required to go through mediation. Mediation helps both parties make more formal arrangements for the future and try to resolve any disputes that may arise or already exist.
Mediation is a process where a divorcing couple who need help to resolve issues use a professionally qualified mediator to help you.
Mediation gives you the opportunity to have more control over the circumstances surrounding your separation. If you go to court the judge makes the decisions, whether you like them or not. A mediator can help you resolve a situation and look at circumstances from a different perspective. It helps with arrangements with not only the immediate issues, such as financial assets and childcare provisions, but can help with extended arrangements regarding step families and grandparents too.
The mediator is neutral and will help you both come to decisions and make arrangements during the divorce process for things like parenting arrangements and money. Some mediators are legally qualified.
Once you’ve chosen a mediator you and your ex partner will arrange a series of sessions, usually between two and six depending on the number of areas that need resolving. You may need legal advice in certain circumstances and it’s perfectly normal to have your solicitor attend the sessions with you.
Many people who start mediation can reach an agreement without having to go to court to get the decisions made.
Mediation Initial Assessment Meeting (MIAM)
You’re not required to attend mediation, although if you haven’t at least attempted a Mediation Initial Assessment Meeting (MIAM) or First Meeting to consider whether mediation is right for you, a judge may refuse the case or order you to attend you. It’s a legal requirement in most cases now.
Of course, there are exceptions to having to attend a first meeting, which include:
• Where there is an allegation of domestic violence
• Where there is concern for the safety of a person or child
• There is no dispute because you are in agreement
• If the dispute is about money and one party is bankrupt
• You do not know the whereabouts of your partner
• The mediator concludes that mediation isn’t right for your circumstances
The meetings can be carried out together with your ex partner, or separately. But if you choose to attend together, the mediator will speak to you both separately too.
Why Have Mediation?
Mediation does give you some breathing space.
According to the Family Mediation Council around 75% of people who attend a MIAM go on to have mediation. Agreements are reached without the need for court costs in 70% of those cases.
So, in a nutshell, mediation can and does work. And even attending multiple mediation sessions is often far less expensive than a court hearing.
If children are involved the mediator’s focus will be what’s best for them. A mediator can speak to any children over the age of 10 to get their views, as long as the child and the parents are happy for this to happen. Some mediators are qualified to see children separately as part of the mediation process.
What Next?
If you reach an agreement your mediator will write a Memorandum of Understanding so that both parties and any extended parties can see what’s been agreed. The Memorandum of Understanding is not legally binding but can be made legally binding and enforcible in court as a Consent Order.
If the circumstances change the parties can return to the mediator to have the agreement changed. If a legally binding agreement is not being met, it may still be worthwhile to try a mediator before taking court action.
When Mediation Isn’t Right For You…
Mediation isn’t for everyone. As mentioned earlier there are some circumstances where mediation isn’t right, particularly where a person’s safety is at risk.
But what happens if you can’t agree in mediation? It’s not the only route.
You could also consider:
• Collaborative Law – here you and your partner will both have your solicitor in the room working to try to reach an agreement
• Family Arbitration – an Arbitrator is like a judge in that the decision will be made for you and the decision is legally binding. It’s often quicker than going to court. You can choose the person, place and which issues you want to have decided.
Some Final Thoughts
Separation and divorce work better when you can agree on things. Getting a court involved should always be a last resort as the decision may not be the one you want, or the one either of you want. It’s costly too and arguing over the value of a television may end up costing more in legal fees than the item is worth.
