MEDIATION

Mediation is, in many ways, the ordered application of common sense. It is, in fact, just that and more. When people find their relationship in difficulties they may want to go straight to a solicitor. If they are married there is a complex legal system, based on many discretions, waiting for them. If they are not married (perhaps because they are of the same sex and cannot legally marry) then there are fewer discretions. Mediators work with the parties (often as co-mediators – i.e. two mediators from different backgrounds) to find an agreed solution. Mediation is not counselling, nor is it therapy. Those disciplines have their place but are not the same.

Mediation can take place at any stage of the breakdown of a relationship – and many clients say it is most effective if mediation help is sought at an early stage. The individuals will be encouraged to use their own independent solicitors for separate legal advice, as their individual legal rights are likely not to coincide all of the time. If a solution can be found in mediation then the solicitors can draw up a legally binding agreement. If the arrangements relate to financial matters, whether about income, property or other assets, the parties may well want the solicitors to submit it for a court order.

In work relating to children, mediation can be particularly helpful not least as many parents do not want a Court officer to become involved, interviewing the children and reporting to the judge, and do not want to put to the Court formal statements about what are often delicate and subtle issues. Children themselves do not usually come to the mediation, but their interests are at the heart of any discussions about the future arrangements that affect them.

There is almost always an initial interview, perhaps on the telephone, to check if there are issues such as domestic violence, or other pressures on one person which might affect their ability to negotiate freely. Mediators are used to dealing with differing levels of financial or other understanding and are quite capable of balancing possible perceived imbalances of powers.

The financial disclosure is on an “open” basis, i.e. it can be referred to in court, if for example, one party has not properly or fully represented the financial truth of their assets. But the discussions themselves and the ideas and options tried out in mediation are “privileged” (what lawyers might call “without prejudice”) so that both parties can raise possible ideas just to try them out. These cannot be referred to outside the mediation unless the parties agree.

Mediators meet face to face with clients, usually for sessions of about 90 minutes. There is some paperwork and, if the issues are financial, then the paperwork is as compatible as possible with that used by the Courts so if there is no settlement the clients do not have to repeat all that hard work! Most mediations are concluded, usually satisfactorily, after between 4 and 6 sessions. A Memorandum of Understanding and a Financial Summary if there are financial issues is then drawn up and this can be shown to their solicitors.

We can offer mediation services within our Family Law Department.