Mediation

Mediation is an alternative way for separating or divorcing couples to resolve their issues without going to court. Through discussions in the presence of a mediator, couples work towards opening channels of communication and reaching their own agreements about divorce and financial issues, as well as arrangements for children. In turn, this avoids the acrimony and expense associated with Court proceedings. It is not designed to reconcile parties who have decided to separate, though it can help preserve the relationship between the parties (especially important where there are children about whom they will need to continue to communicate in the future). Although couples usually attend mediation without their legal advisers, each person is encouraged to take legal advice throughout the process.

Mediation is not an easy option and some can find it emotional and difficult to address sensitive issues, especially after a long period of non-communication. The advantages are that the mediator can offer solutions to problems you may not have thought of and “reality-check” proposed ideas with you to make sure they are feasible and likely to last.

How does mediation work?

• Mediation can take place before any Court proceedings have been issued, or even after proceedings are in train. If there are proceedings already, the Court is likely to be sympathetic to a request for a postponement of the next hearing so that mediation can be attempted, if that is what you both want.
• The mediator’s role is to help you identify the issues that are not agreed and to encourage you to formulate your own solutions. Although the mediator will give broad advice on legal principles, s/he is not there to advise each of you about the law and the likely outcome through the Court. As such, the mediator can only work with a couple if s/he has not already been instructed by one of them individually and given advice in that capacity.
• At the first meeting you will each sign an Agreement to Mediate, setting out the objectives of the process. You will then each explain to the mediator the issues between you. The mediator will explore what further information is needed to resolve those issues (such as financial disclosure, looking into the cost of buying a new home for one of the parties, exploring contact arrangements etc) and will assist you to help yourselves move matters forward outside the mediation forum.
• At the second and subsequent meetings, the issues are narrowed through discussion and you will work towards reaching an accord. It is not expected that this will take more than 3 to 5 meetings.
• All settlement discussions in the mediation setting are “without prejudice”, which means that they cannot be referred to e.g. in any subsequent Court proceedings. Therefore you need not worry about saying anything which may later prejudice your case. The financial disclosure is open and may be used in the event that the mediation breaks down, meaning that considerable costs savings can be made even if the mediation does not result in agreement.
• Once the issues have been resolved, a Memorandum of Understanding is drawn up by the mediator which sets out in some detail the tentative agreement reached. However, this is not binding on either of you until you have been able to take advice from your own solicitor.
• If your solicitor, and your spouse’s solicitor, advises that your agreement in mediation is likely to be endorsed by the Court, the solicitors will draw up minutes of agreement and invite the Court to make them into a formal Order. Usually there is no need for anyone to go to Court and that will signal the end of the process.
• However, mediation can be stopped at any point : for example if one party is not giving full financial disclosure, or if the mediator feels that there is inequality of bargaining power which cannot be overcome.

Why choose mediation?

• You retain control of the process and can set the pace at which it proceeds.
• It avoids the acrimony, delay and high costs associated with Court proceedings. It often results in very significant costs savings for both parties.
• Successful mediation leads to solutions tailored to your family, rather than an Order imposed by a judge who has had little time to get to know your family.
• As the process is voluntary, it is more likely to lead to long-lasting outcomes that both of you will honour.
• It provides a safe environment for both parties to tell their side of the story,helping to preserve relationships and communication between them going forward.

The Manches family law team has two trained mediators :

London Office
Joanne Edwards

Oxford Office
Alexandra Lewis

Note that if you do feel that mediation may be appropriate in your case, both you and your spouse/partner will need to speak to Jo (in London) or Alexandra (in Oxford) to make an appointment for the first mediation session. We cannot give advice to either of you individually; if we do, we will be precluded from acting as a mediator in your case.