In praise of mediation
By:1 commentJanuary 24, 2017
For reasons I won’t go into here, I think I may have gained a reputation in some quarters for being an opponent of mediation as a means of resolving family disputes. In fact, nothing could be further from the truth. As I have said here previously, I very nearly trained as a mediator way back in the 90s, long before mediation really took off, and when there were very few solicitor-mediators. In the event the only reason I didn’t was that mediation was so unusual in those days that I didn’t think the amount of work available merited the quite substantial investment in training, both in relation to cost and time. I was also worried that only doing very few infrequent mediations would make it difficult to gain, or retain, expertise.
Things have changed a lot since those days. Mediation now occupies a central role in the family justice system, with it being compulsory since 2014 to attend a mediation information and assessment meeting (more commonly referred to as a ‘MIAM’), before taking a family dispute to court. However, take up of mediation is still slower than many, in particular the Government, would hope, and therefore efforts to promote it continue.
One of those efforts is taking place this week – namely ‘Family Mediation Week’. Organised by the charity Family Mediators Association, the aim of Family Mediation Week “is to let more people know about the benefits of family mediation, and to encourage separating couples to consider family mediation as a way of helping them to take control of their situation and to make decisions together.” During the week, the Association will be publishing resources, information and blog posts to explain family mediation, help separating couples decide whether mediation is for them, discuss the benefits of family mediation as a “well-respected and legitimate alternative to court”, and connect separating couples with mediation professionals.
At this point I suppose I should briefly explain exactly what mediation is, for the benefit of those who don’t know. Mediation is a system, or process, whereby a trained mediator will, if they consider it appropriate, help a separated couple explore the possibility of reaching agreement in regard to family matters such as arrangements for children or finances. The mediator should guide them towards a reasonable settlement and, if successful, will prepare a written memorandum of the agreement. The parties are then free to take legal advice on the agreement. Note that if the agreement relates to finances on divorce, it will not be legally binding until it has been made into an order (called a ‘consent order’) by the court.
There is a charge for mediation. However, as I mentioned above, the Government is very much in favour of mediation, seeing it as an alternative to expensive court proceedings. Accordingly, the Government specifically excluded mediation from its abolition of legal aid for most private law family proceedings. Legally aided mediation is completely free of charge. Further, those on certain kinds of welfare benefit are ‘passported’ to free mediation.
What are the benefits of mediation? Well, there are several provided, of course, that the mediation is successful, i.e. that it results in an agreement between the parties. Obviously, there is no guarantee of success, and an unsuccessful mediation could be seen as a waste of time and expense, although one would expect at least some issues may have been resolved, thereby reducing the number of matters to be argued over in court.
The benefits of mediation include: being in control of the process, rather than subject to a court timetable (which will usually take longer); keeping things civil, rather than going through an adversarial court process; keeping everything private; and saving money, over the cost of expensive contested court proceedings. In short, if you can’t agree matters direct with your former partner, or through solicitors, mediation is an excellent alternative to contested court proceedings.
Before we get too carried away, however, I should inject a small note of caution. As I have said here previously, mediation is not a panacea. It is not appropriate in every case. In particular, it is virtually by definition a voluntary process, and therefore requires the full cooperation of both parties. It also obviously requires that both parties are prepared to make concessions, and that neither party tries to bully the other into agreement. As indicated above, the mediator should, early in the process, assess whether the case is suitable for mediation.
If you are looking for a specialist family mediation service, would like to know if your case is suitable for mediation, or would simply like more information about mediation, see here.
Photo by Philippe Put via Flickr
January 24, 2017