Welcome to Mediation Week!
As part of Mediation Week we will be posting an article every day to provide more information about this form of alternate dispute resolution. Burgess Mee has a significant ADR offering and five trained mediators – Kirsty Morris, Ffion Greenfield, Peter Burgess, David Lillywhite and Henrietta Thomas, all of whom mediate across a wide range of issues involving finance and children. Peter is also an accredited mediator with the Family Mediation Council while David is also a trained collaborative lawyer who brings to bear his experience in this sphere of dispute resolution to his mediation practice.
What is mediation?
Family mediation is a process where an independently trained professional meets with you and your partner to help steer you towards making agreements about important issues such as the arrangements for any children and the financial aspect of your separation (both in the short and long-term).
The benefits of mediation compared to the court process (and indeed other forms of dispute resolution) are well documented but I have set out a non-exhaustive list of examples below.
- Autonomy – perhaps the most important benefit of mediation is that the parties themselves have a greater degree of control and responsibility over whether to settle a dispute and, if so, on what terms. Taking on that responsibility may help to bring about an outcome that (1) best caters for the particular needs of the family; (2) the parties can 'live with'; and (3) is more likely to be complied with and stand the test of time.
Given the higher level of autonomy bestowed on the parties in the mediation process, before committing to that process, it is vital that they understand and feel comfortable with (1) how the law applies to their situation (2) what to expect from the mediator and (3) the status of any discussions held in the mediation – they will be treated as confidential (a benefit of mediation in its own right) unless agreed otherwise. Preparation for the mediation by way of taking legal advice and having an initial meeting with the mediator is therefore likely to be key.
- Creative outcomes – tying in with the above, mediation allows parties to agree outcomes that might otherwise not be possible to achieve through the court process (or at least be beyond the imagination of a judge who has limited time to get to grips with their case). No two families are the same; what makes a particular situation unique can be explored in mediation, with the parties involved able to explain what matters to them most and to negotiate any agreement with that in mind.
- Cost/speed – clearly, an agreement reached over a series of meetings, arranged at the convenience of the parties involved, can help to save significant cost and expense compared with the court process which can and often does take place over many months (if not longer) in some cases.
Viewed in the round, mediation can help parties to achieve long-term and cost-effective solutions that help to preserve family relations and reduce acrimony.
Is my matter suitable for mediation?
Before making any application to the court, separating couples have to show that they have at least considered mediation. They do this by attending separately a Mediation Information and Assessment Meeting (also known as a MIAM) before starting court proceedings in all but a few exceptional circumstances such as where there have been any incidents of domestic violence.
At your MIAM, the mediator will be able to answer any questions you have about the process and explore the background to your separation. After the mediator has met with you and your ex-partner, they will be able to determine whether your situation is suitable for mediation. If there is an obvious issue with effective communication or a history of abuse in your relationship then your matter may not be suitable. The mediator will make sure both you and your partner are comfortable being in the same room together. It is not an immediate barrier if you are not. The mediator might suggest an alternative form of mediation that involves having your solicitor present with you or having sessions where you and your ex-partner are in separate rooms. This is known as shuttle mediation and involves the mediator moving between both rooms to facilitate the discussion. If you do not feel comfortable sitting in a room with your partner then you may still be able to mediate using one of these alternative methods.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
