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What is mediation and how does it work?

Contrary to what some people may believe, Mediation has nothing to do with reconciliation or counselling. Mediation is a method to find ways to communicate with each other as separating parents or an effective way of resolving civil disputes without the need to go to Court. It involves an independent third party, a Mediator, who helps both sides come to an agreement.

Mediation is suitable for many forms of disputes, including family disputes involving separating parents or cohabitants and other civil disputes such as consumer, contract and employment disputes. Mediation is a flexible process that can be used to settle disputes in a whole range of situations.

In the family context, Mediation tends to fall under three different categories:-

  • Children
  • Finance and Property
  • All issues, including divorce

The role of the Mediator is to help those involved reach a solution or outcome that both parties feel they are able to accept. Mediators are objective and avoid making judgements or giving guidance. The Mediator is simply responsible for facilitating effective communication and for exploring options to reach an agreeable settlement.

What is Mediation?

Mediation could be summarised as follows:-

  1. A process for those involved to engage in negotiations to reach a mutually acceptable agreement.
  2. To provide a safe environment in which those negotiations can take place.
  3. In the case of family disputes, to be child-focused and future-focused.
  4. To reach an agreement over which those involved have control.
  5. Is a confidential process.
  6. In the family context, is suitable for married couples, civil partners and those who cohabit.
  7. Involves an outcome over which the parties retain control and not a result imposed upon them.

There are four main principles that underpin Mediation:-

  1. Mediation is voluntary. However, in the family context, in most cases, you would usually be required to attend a Mediation Information and Assessment Meeting (“MIAM”) to find out more about the options before you can issue an Application to Court, or early on in the process. Although there is no undue pressure placed on the participants to engage in Mediation, the Courts increasingly expect parties in both family and civil disputes to have undertaken or investigated some form of Mediation prior to the issue of any legal proceedings. This must be balanced against the Mediator’s caution, particularly in family cases, about proceeding with mediation in cases of abuse or violence or any extreme imbalances of power.
  2. Mediation is impartial. Mediators are non-judgemental and will not direct or express a personal opinion but will engage in a dialogue with you to explore your options and provide information.
  3. The Mediation process is confidential unless, in the family context, there are issues of child protection, domestic violence or money laundering. Any proposals made by either party which are mutually acceptable are written up as a confidential summary which is not legally binding unless an agreement is drawn up by lawyers following Mediation and reviewed by the Court. The confidentiality of Mediation is enshrined in Case Law and can be summarised by that Case Law as follows:-
    “Parents would not achieve a compromise unless they approach conciliation openly and are prepared to give and take. They will not make admissions or conciliatory gestures unless they are confident that these cannot be used against them. Any attempt at conciliation must be off the record but there are exceptions….. and, further, the only exception would be in the rare cases where a statement made during conciliation indicates that the maker has caused, or is likely to cause, serious harm to a child”.
  4. The participants in Mediation remain in control of the decision making. The participants are the ones who know their situation better than anyone and, within the realms of reality, a mutually agreeable settlement will hopefully be achieved.

How does Mediation Work?

A Mediator will give you information about how the Law approaches your particular problem, the Court process and the options available to you by exploring these during discussions with you. There is a general standardised approach to Mediation as follows:-

  1. Allow you to explain your situation and obtain information from you.
  2. The Mediator will help you set out an agenda that needs to be discussed focusing on your needs and what you wish to achieve.
  3. List the issues that may need to be discussed.
  4. Together with everyone present, decide on the importance of the issues that need to be discussed.
  5. Deal with any timescales that may be applicable.
  6. Explore options and further clarify the issues in dispute.
  7. Discuss with the parties any common ground.
  8. Obtain as much information as possible from the parties following discussions.
  9. Explore and discuss options.
  10. Explore any possible proposals.
  11. List proposals made.
  12. Produce a summary of proposals and/or an open financial statement.
  13. Inform you how to obtain legal advice on the proposals and the possibilities of converting those proposals into a legally binding agreement.

There are a number of considerations that you should take into account when deciding to use Mediation. There are agreements that can be reached in Mediation that may not be something that the Court can Order but may be suitable for your particular situation and, therefore, you will retain control over the outcome by attending Mediation and agreeing the way forward. You will need to feel comfortable with the possibility of meeting with someone else present to facilitate your discussions. Mediation may be particularly suitable in circumstances where there is a degree of common intention between the parties involved. Mediation is often quicker than the legal process and, therefore, if you are looking for a quicker solution within your timeframe rather than a timeframe enforced upon you by the Court, Mediation may be more suitable to your situation. Costs’ saving is an obvious factor as Mediation is commonly far cheaper than the litigation process.

Finally, in the context of family matters and, particularly children, it may be that there is a need to work through the emotional/psychological trauma that separating parents often experience to try and achieve a resolution that is not only child but future-focused, placing the needs of the child at the centre of your concerns.

At Accord Mediation Services, we offer professional lawyer-led Mediation, both face to face and online (location is no limitation), allowing for both convenience and the free flow of professional information at the time of Mediation. Please telephone our office on 01323 738258, email us via the Referral Form on this website, or email us at enquiries@accordmediationservices.com

Paul Summerbell
Accord Mediation Services
7th October 2014