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Family mediation: what is it and how can it help you?

Posted on 16 January 2023

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This week is Family Mediation Week (16-20 January 2023), designed to raise awareness of family mediation and the benefits it can bring to separating couples and families. Here, we consider some commonly asked questions about mediation.

What is Mediation?

Mediation involves discussion facilitated by a neutral mediator with a view to reaching an agreement on matters relating to finances, children or any other practical issue that may arise between separated couples. The mediator will hold an initial meeting to ensure the situation is appropriate for mediation and to discuss how best to move things forward. Whilst the mediator can facilitate and encourage discussions between separated parents or couples, overall resolution can only be reached by agreement.

Does it work?

Yes! In March 2021, the Government launched the Family Mediation Voucher Scheme, providing mediation vouchers for family disputes. Figures released in June 2022 showed that, of the first 2,800 completed cases using the vouchers, 65% reached either a whole or partial agreement away from court, while a further 3% only attended court to formalise their agreement.

If I attend mediation, do I still need a lawyer?

Many couples attend mediation without receiving independent legal advice. However, the mediator cannot give the couple legal advice and so if parties are unaware of their legal position, it can be more difficult for mediation to succeed. Particularly where a case is complex or there are assets that are not straightforward, such as trust or corporate structures (or certain pension schemes), it is often best to have the benefit of legal advice in parallel with the mediation. A lawyer can also assist with drafting a consent order arising from any agreement reached at mediation, so that it can be made into a binding order by the court. Where agreement is reached through mediation, it is almost always quicker and cheaper than contested divorce proceedings.

If I attend mediation to resolve financial issues, do I need to disclose my assets to my ex?

Yes. Although a couple obtaining a divorce or judicial separation can reach agreement between themselves, in order for that agreement to be made into a binding order, it needs to be approved by a Judge. Without an order, either party might try to bring financial proceedings in the future, often several years after the divorce. The Judge will need to see a summary of the parties' assets and income position in order to determine whether the proposed agreement is "fair". If it turns out that either party failed to disclose assets (and so misled the other party and/or the Judge), it may be possible to re-open the agreement reached.

What if I don't want to be in the same room as my ex?

Usually, the parties and mediator will sit together to discuss matters and the mediator can set ground rules to ensure that everyone treats each other appropriately. However, if you feel that you cannot sit in the same room as your ex, you can ask to sit in separate rooms, with the mediator travelling between the two rooms. This is known as "shuttle" mediation. Remote mediation has also become more popular since the pandemic.

If the reason that you do not want to be in the same room is due to a history of domestic abuse in the relationship, it may be that mediation is not suitable for you. The mediator will carry out domestic abuse screening before mediation commences.

If we don't reach agreement, can I rely on what the other party said during the mediation?

Discussions, negotiation and proposals made within mediation are confidential and without prejudice and ordinarily cannot be referred to in legal proceedings. However, financial disclosure is provided on an open basis and so can be relied upon in any subsequent court proceedings. The mediator will ordinarily prepare a summary of the assets, known as an "Open Financial Statement" and this can be relied upon even if mediation is not successful.

How do I find out more?

For more information on or support with mediation or any issues regarding resolving family matters, please speak to our Family team, who have extensive experience areas in this area as well as connections to therapists and other experts.

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