Family Law Mediation - When it works and when it does not
Family Law Mediation – When It Works And When It Does not
Family law mediation is a key part of the non-court dispute resolution methods (NCDRM) or alternative dispute resolution (ADR) process. It provides a completely different experience to attending Court as mediation works towards a win-win solution. Mediation also focuses on getting participants to communicate effectively and work out solutions between themselves rather than have a court order imposed on them. But mediation does not provide a magic bullet for resolving family law disputes. In this article, we examine when mediation is the right method for resolving family disputes and when it should be avoided.
What is family law mediation and when does it work best?
Family law mediation is a voluntary, confidential, and legally privileged form of dispute resolution. It involves parties to the dispute attending meetings together, separately, or both, with an impartial third party (the Mediator). The Mediator does not impose any decision on the parties, instead they facilitate discussion, identify viable solutions, and help the parties resolve their issues in a calm, respectful manner.
Mediation is much cheaper and less stressful than resolving disputes in the Family Court. As a Family Law Solicitor, I try to steer my clients towards mediation as much as possible as it not only helps resolve the dispute at hand, but it can also assist with developing communication strategies between ex-partners, helping them resolve future issues between themselves without the need to instruct a Solicitor.
Mediation can be done face to face, but it is possible to use separate rooms; this is sometimes referred to as ‘shuttled mediation.’
The Mediator will assist by:
• Listening to both parties to determine what issues need to be discussed.
• Ensuring both parties get to speak
• Offer any guidance or information relevant to the discussion
• Advise you if it will be necessary to seek input from other services or specialists
• Work towards an agreement which is fair to both parties, always considering the needs of any children involved
It might be necessary during the process to consult with a Solicitor to talk about what is being discussed and agreed. The Mediator will ensure you have an opportunity to do this.
Although the decision worked out between parties with the help of a Mediator is not legally binding, your Solicitor can draft a Consent Order that will be reviewed and, provided the presiding judge deems it fair and equitable, approved, thereby making the agreement legally binding.
When is mediation not suitable?
Mediation is suitable for most family law disputes, including high-net-worth financial settlement cases. But where there is a history of domestic violence, coercive control, or narcissistic behaviour, you and your Family Law Solicitor are likely to agree that mediation should be avoided, and it is better for the case to be decided by a Family Court Judge.
But isn’t attending mediation compulsory?
Mediation is a voluntary process, and you cannot be forced to participate. The previous Conservative Government considered making mediation compulsory for separating couples. The reasons behind this were that despite encouraging people to pursue NCDRM, Family Courts remain overburdened, causing harmful delays to families who need to resolve certain matters so they can move forward to a positive future. However, as mentioned above, mediation is not suitable for every case, and the proposal to make it compulsory has been dropped.
Amendments to the Family Procedure Rules provide that the Court must consider the use of NCDRM at every stage of proceedings. This means the Court will require updates from each party at every hearing concerning whether NCDRM has been used and if not, why not. Although this may seem quite intimidating, you can trust your Solicitor will represent you and your position on NCDRM to the Court and put forward arguments as to why it is not suitable for your family law dispute.
If I am considering mediation, what advantages should I be aware of?
It may not be the solution for everyone, but mediation provides many benefits including:
• The speed of family law mediation is controlled by you. For example, you can schedule several mediation sessions to happen in quick succession or spread them out by booking them individually.
• The fees attached to a mediation session is well below that of a day in court. In addition, you and your ex-partner can agree to split the costs between you.
• Mediation is confidential, so your private family life remains just that...private.
• You can choose what issues are dealt with the order in which they are discussed
Wrapping up
To ensure your best interests are protected and you feel comfortable with your understanding of family law procedures, it is essential to instruct a Family Law Solicitor with whom you feel comfortable. They will advise you on the best course of action given your situation and whether NCDRM is right for you.
If you have any questions regarding this article, please call us on 0300 3732424.
