Re:Mediation - a happy medium

The happy medium

When your relationship has crumbled, and you want to cut your ties as soon as possible, it seems easy to head straight to a divorce solicitor. But there is another way.

Whether you’re married, cohabiting or just have children together, mediation is the calmer and cheaper way forward. As part of a rethink in the way that separations are handled in this country, mediation is being promoted as the first port of call. Published this month, the Family Justice Review has recommended increased provision of mediation at an early stage to prevent cases ending up in court with no good reason.

The changes were prompted by concern about the huge sums of public money spent on divorce and separation as well as the long-term effects on children and society of couples who remain in conflict for years after they have split. Whereas a divorce can cost thousands in legal fees, mediation can come in at a tenth of the cost.

Already as from April 2011 Practice Directions state that anyone considering making an application to the court to sort out arrangements with their ex about the children or their finances following separation must attend an initial Mediation Information and Assessment Meeting (MIAM) with a mediator. An assessment can then be made about the best way forward, for example by working through a parenting agreement in mediation.

The new proposals in the Family Justice Review if implemented will enshrine this in legislation and in addition say that If children are involved, both parents must also attend a Separated Parent Information Programme (SPIP) to discuss ways of minimising conflict and increasing communication, with the expectation they will then attend mediation. Only after they have attended a MIAM and SPIP can they make an application to the court.

A family mediator will sit down and work out with a separating couple how to divide any assets up in a practical, realistic and fair way. We start by setting out certain guidelines. Neither party is allowed to interrupt or speak over the other person, for example; we know that it is important that people listen to each other.

Mediation can be possible with the most polarised of couples. Mediators work out why exes can get angry with each other - it’s usually fear of some sort, such as the prospect of losing the children. Once their other half has reassured them, they can start talking.

A major goal is to make sure children’s views are taken into account and that they are listened to – we usually see children aged from 7 upwards. There is increasing evidence that children's needs will be met by minimising conflict between their parents and assisting parents to communicate in a constructive way together about their children.

Research shows that 12 years after separation, couples who have gone through the mediation process are still reaping the rewards with a much happier outcome and an ability to communicate as parents in the interests of their children.

Family affairs

Susan and Nick came to see me recently. They were still living in the same house. Susan wanted to stay in the family home with their two children, a six-year-old boy and an eight-year-old girl. Tension was rising because Nick was refusing to move out of the house. Nick told me he was terrified he was going to lose the children and that is why he wouldn't move out. He did not want to be a ‘Saturday’ parent.

Putting the legal terminology aside, such as custody, access, residence and contact, we spent the session focusing on the reality of their day-to-day lives and what arrangements were possible. Using a flip chart, we worked out a schedule of arrangements for the children which suited both parents’ working patterns and the children's activities.

A sense of equality

Sarah and Tom came to mediation. They wanted to separate and reach a financial settlement and work through the idea of a shared arrangement for their two-year-old daughter.

The couple spent the sessions looking into the practical side of how 50-50 shared care pattern would work in reality. They talked about nurseries, bedtimes, dropping off plans, birthdays, holidays, extended families and telephone calls.

Splitting the sessions in half, Sarah and Tom were able to work through financial issues too and reach an agreement to move them both forward, enabling them both to buy a new property.

Mediation is all very well if both parties are honest and want to make it work.

I found it a total waste of time because my ex didn't stick to anything agreed and when I presented copies of the mediation minutes in Court I was told it didn't count because the minutes were "without prejudice and confidential".

Those who make the law also make the loophole. In fact the whole family law process, mediation, cafcass, etc is a disgrace and only lines the lawyers pockets.

I agree mediation only works if both parties enter mediation wanting to sort things out and move forward. That is why the MIAMS meeting is so important. This is the opportunity for the mediator and the person they are seeing to discuss whether in the particular circumstances and given the personalities involved mediation is worth trying. It also may work at one stage in the divorce process but not at another, timing can be crucial.

If you do reach a potential agreement in mediation it is not legally binding. That is because discussions in mediation are intended to be as open and honest as possible. If you think that every word you say in mediation and every offer you make can be used in court proceedings discussions might be less open. However if you are both agreed that you have sorted something out and you want to make it legally binding then a solicitor will usually convert the agreement into a legally binding consent order which can be submitted to the court. All this should be explained to you in the initial meeting when mediation is being considered(the MIAMS meeting).