Resolving your differences in alternative ways: mediation

Many families going through a divorce or separation prefer to sort out their marital assets and care for their children in an amicable and civilised way. This approach has obvious benefits, not least in avoiding litigation.

The ideal is to work together and put the best interests of the family first, rather than become embroiled in potentially costly and lengthy legal battles. But in reality, couples often need help to achieve this.

There are many alternative dispute resolution options available to couples going through a a relationship breakdown; such as collaborative law, negotiation through your solicitor, arbitration and private judging.  However, the focus of this blog, I will look at how mediation can be a positive and successful way to resolve differences.

What is mediation?

Mediation is an alternative dispute resolution process. The couple meet with a professionally trained, neutral and independent mediator who will help them work out arrangements for their children and/or finances. It is a voluntary process that the couple choose to do, rather than a process that is imposed upon them.

The role of the mediator is to help resolve disagreements over the sort of issues that all  separating couples face, including specific issues such as arrangements for any children or division of assets. By meeting the couple together, the mediator will be able to talk to both of them and facilitate discussion in a safe environment.  The mediator will look at the issues that are under dispute and try to help the couple negotiate towards an agreement.  

Some mediators offer an opportunity for children to be involved in the mediation so that they have a voice in the process. This is always done in an age appropriate manner that shields them from being directly involved in the decisions their parents need to make.

Why might I choose mediation and how does it work? 

Couples choose mediation because they want to remain at the centre of the discussions that need to be had. It will help you retain control over decisions that arise from a divorce or separation – from child custody to division of your finances. And not least, it will avoid the uncertainty, costs and delay of going to court.

Mediation will allow you to discuss these important life decisions with someone who will remain neutral and independent, but who is professionally trained to identify what is important to each of you. The mediator will help facilitate discussion and explore options. The aim is to reach amicable solutions as to the best way forward, both for you and any children.

Mediation is a flexible process that can be tailored to meet the needs of your family. It can be carried out face-to-face or can be conducted remotely via video calls such as Zoom or Teams.

I’m going to mediation - do I need legal advice?

If either of you already has a solicitor, he or she may make the initial referral, but couples can easily arrange mediation themselves. However, your solicitor/s won’t be present during the mediation sessions because the meetings are confidential between the couple and the mediator.

Whilst a mediator is a qualified family law solicitor - as many are - they cannot give legal advice to either of you during or alongside the mediation process. They may, however, provide information to help you work towards your own decisions.

It is important that you have legal advice during the mediation process. When a relationship breaks down there are many legal issues that have to be agreed, such as how your finances will be arranged, who your children will live with and how they will be supported. 

The implications of such decisions go far beyond the actual divorce and could affect your future standard of living. A solicitor will help you understand what a fair outcome may look like and explain the legal implications of any proposed settlement. In our experience, couples who receive independent legal advice alongside the mediation process are more likely to reach a fair and sensible agreement.

What should you do after divorce mediation?

 If you reach an agreement, the mediator will prepare a written summary of the proposed settlement terms (known as a memorandum of understanding), together with a summary of any financial disclosure exchanged between the couple.

The agreement you reach in mediation is not legally binding, so you can - and should - take legal advice from a family law solicitor after the mediation has concluded.  If, after taking legal advice, both parties are happy to proceed with the agreed terms, the solicitor will then convert the agreement into a legally binding and enforceable court order.

How Birkett Long can help with mediation

If you would like to discuss whether mediation could help you, please contact us for a free 15 minute consultation.  At Birkett Long we have links with many family mediators and will be happy to signpost you in the right direction. We can also provide the specialist legal advice you will need alongside the mediation process.