Family mediation when you separate or divorce
When you can’t agree on how to divide your money or property on divorce or separation, you can arrange to see a mediator rather than a solicitor.
You don’t have to go to court to sort it out and there are advantages in going to mediation instead.
The advantages of family mediation over court proceedings
Does family mediation work?
Family mediation works in the majority of cases that we have national statistics for.
In fact since 2006, in around 67% of all cases where data is recorded, mediation was successful.
That is a pretty good record. It’s certainly a good recommendation for giving mediation a try.
Let’s look again at the advantages of mediation over going to court.
Mediation is less formal than the court process
Mediation is usually less stressful than going to court because it takes place in a less formal formal setting – usually an office rather than a court building.
You can choose the date and time of your mediation meeting. This means it can fit around other commitments you have, such as work, holidays or collecting children from school.
In a mediation meeting, you get the chance to speak for yourself, instead of having to remain quiet whilst a solicitor or barrister speaks for you.
You can talk about all sorts of issues together at mediation
Court proceedings are quite rigid and structured. There are time limits for filing documents and rules about what is relevant to the case.
This means that the court process runs as smoothly as it can and you may have a reasonable idea how long each hearing will take.
Whilst that can be an advantage, it is also sometimes very frustrating.
Decisions about where children live cannot be made at the same time as money issues.
And the rules to help the judges decide each type of case are very different.
Sometimes this feels disjointed and as if the two processes are working against each other.
Delays happen when one case needs to wait for a decision in the other.
Two different judges can end up working with the same family.
And it can all become very expensive.
Mediation is almost always cheaper than going to court
Money isn’t everything. But it’s a fact that mediation almost always costs less than going to court.
When you choose a mediation service, you will usually appoint one single mediator to work for both of you together. When you go to court, you will usually appoint a solicitor or barrister each.
In fact, very often you will each have both a barrister and a solicitor.
The hourly rate for a solicitor and or a barrister is likely to be more than your share of the mediator’s hourly rate.
But there is also usually more to it than that. The system itself makes it difficult for you reach agreement.
Court proceedings are adversarial.
Instead of sitting down together to find a solution (no matter how hard that can be), the aim is to “win” by pointing out the flaws in the other side’s case.
Often the only time you can actually look at each other, one of you is in the witness box.
Despite this, there is a place for court proceedings – even in family law – but it shouldn’t automatically be your first choice of forum.
What happens at mediation?
This depends on the sort of mediation you need.
If you’re trying to divide up your property or money on divorce or separation, you’ll start off by filling in forms to show what money and property you’ve got.
You’ll also show any debts and pensions and income.
You’ll say what you want to happen to it all.
And why you think that’s fair.
The mediator will help you deal with tricky situations; for example when you think the other person is lying or when you don’t know what the law says about money or maintenance.
Mediators must be neutral
Mediators don’t take sides. But that doesn’t mean a mediator can’t challenge what either of you are saying. Sometimes that’s important.
You’re at mediation because you can’t agree on something. Sometimes the mediator needs to ask some difficult questions to unravel why that really is, to help you find a solution.
Mediation isn’t a soft option. It’s hard sometimes to sit in the same room; you may find your partner or spouse intimidating and that’s off-putting.
A qualified mediator is trained to quickly identify power imbalance in a couple and to support the less dominant personality – without being biased.
Having said that, there are times when one person is so much more forthright than the other, that traditional mediation just won’t work.
The less dominant person may seem willing to agree to anything just to get out of the room.
This may follow a familiar pattern, and the more dominant personality might feel pleased with the outcome. But that is likely to be temporary, because that kind of agreement is more likely to break down quickly. Those are the cases that eventually tend to end up in court.
As an alternative, another form of mediation may be worth trying. This is called shuttle mediation, where you sit in separate rooms and the mediator “shuttles” back and forth.
This might seem more attractive, but hard as it might sound, traditional mediation is usually the better option where possible.
Mediation and court proceedings are not mutually exclusive
The only rule is that you must explore usually the option of mediation before you apply to the court for an order in certain family proceedings.
There are a couple of exceptions to this rule.
It doesn’t apply to consent orders. There’s no need to involve a mediator if you have an agreement and you’re simply applying to the court to approve it.
If there’s been any violence (I don’t like the phrase “domestic violence” – violence is violence) then you’re absolutely not expected to attend mediation with the perpetrator.
If, having explored mediation, you find that it is not suitable, you can go ahead and apply for a court order.
But, at any point you can change your mind and go back to mediation, as long as the other party agrees to as well.
You can even go to mediation alongside preparing the court proceedings.
There is nothing wrong with that, if it helps. Although it will be quite expensive to do both.