1. Mediation is reconciliation
This is a common misconception. Mediation is not about getting back together with your ex-partner, and it is also not therapy. Therapists can be invited into mediation, with the agreement of both individuals and where appropriate, to assist the mediator with facilitating discussions. However, the purpose of mediation is not to get people back together. If you would like to explore that, seeing a therapist or counsellor would be the most appropriate option. The role of the mediator is to help you resolve issues by facilitating a discussion between you.
2. You have to be in the same room
You do not have to sit in the same room, if you do not feel comfortable doing so. Being in separate rooms is known as 'shuttle' or 'separate spaces' mediation, and the mediator will move between the two rooms to communicate what you each want to say to the other. It is also possible to do this remotely, so that you are in separate virtual 'rooms'. You can also change between being in the same room and separate rooms. For example, you may begin in the same room, but move to separate rooms – or the other way around. Mediation is a flexible process that is tailored to your individual needs.
3. Agreements reached in mediation are binding
If you reach proposals in mediation, these are not legally binding. However, you will be encouraged to take legal advice on those proposals, and you may then decide to formalise them with a legally binding document.
Your discussions in mediation are 'without prejudice', meaning that they are confidential and cannot be referred to in any future court proceedings. This gives you more freedom to have open and honest discussions, without worrying that what you say will be used against you. An exception to this is financial disclosure – this is always produced on an 'open' basis. There are also exceptions relating to safeguarding and illegality, which the mediator will explain within the MIAM at the outset of the process.
4. The mediator will make decisions for you
The mediator will not make any decisions for you, nor will they tell you what you should do. Their role is to facilitate a discussion and to help you reach proposals between you. The mediator can provide legal information where it would assist the decisions, but they cannot provide legal advice.
5. You cannot mediate if you are in court
Being in court proceedings is not a bar to mediation taking place. You can mediate at any stage in the court process, and the Family Court encourages this. Mediation is a much cheaper, more constructive alternative to the court process, and enables you to make decisions which are best for your family, rather than a judge to imposing their decision on you.
6. Mediation cannot be used when there has been domestic abuse
Whilst mediation may not be a suitable process if there has been domestic abuse, the existence of domestic abuse is not an automatic bar. During the individual meeting at the beginning of the process, which is confidential, the mediator will explore whether there has been any domestic abuse in the relationship and any other concerns with you. The mediator will then consider whether mediation could proceed safely, with appropriate safeguards put in place (for example, separate rooms or staggered arrivals).
This extends to the mediator considering whether there is a power imbalance, and whether that can be managed within the process so that both individuals are able to speak openly. Within the first meeting, the mediator will also explore alternatives to mediation and they can signpost to services and resources.
Further, it is important to note that a mediator's duty to consider the safety and suitability of mediation continues throughout the process and so this will be kept under continuous review.
7. A MIAM is just a tick box exercise
This is incorrect and the MIAM performs a very important function. A MIAM is a confidential, individual meeting at the very beginning of the process, whereby the mediator will:
- explore your situation with you, including your aims and concerns
- explain what mediation is and how it works
- explore other available options
- assess whether mediation is suitable and safe
The mediator must have a MIAM with each individual separately before a joint mediation session can take place, subject to both individuals agreeing to proceed and the mediator being satisfied that mediation is suitable.
If either individual wishes to issue court proceedings, the mediator can certify that they have attended a MIAM which – unless an exemption applies – is compulsory before a court application can be made to the Family Court. However, whilst a mediator can sign the certificate to confirm that an individual has attended a MIAM, this is not a tick box exercise, and the mediator is obliged to carry out a full meeting as well as inviting the other person to a MIAM.
8. Mediation is pointless because it is not binding
This is another myth that we hear quite frequently. Firstly, not all agreements need to be made legally binding, such as parenting arrangements. Secondly, if you have reached proposals in mediation, then the mediator can provide you with a 'memorandum of understanding' which is a without prejudice document that summarises the proposals you have reached. This can be taken to your solicitor so that they can provide you with advice. If you then wish to proceed with formalising the proposals with a binding agreement, the memorandum of understanding can be used as the basis for a more formal document, such as a financial remedy consent order, which would be prepared by your solicitor.
9. Mediation is only for people going through divorce
Mediation can be used to discuss a wide range of family law issues, including (but not limited to) divorce, dissolution, separation following cohabitation and child arrangements. Mediation will often take place around the time of separation, but there is no time limit. Mediation can also be used to review previous agreements/arrangements, as well as to resolve specific issues that might arise as time goes on (for example, disagreement around the choice of school or a variation of spousal maintenance).
10. Mediation is a one-off session
It is possible that only one session will be required, but most people require between 3-5 joint sessions – every case is different.
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.
