What is mediation and what can be discussed at mediation?
Mediation is one of the alternative forums which can be used to try and agree various matters outside of Court. Mediation is encouraged by the Court and indeed some family applications require Mediation to be considered prior to an application being made to Court.
The Mediator is an impartial person who cannot offer legal advice to either party. They will not tell either party what do agree to. They will however provide legal information and facilitate the discussions to help the parties reach agreement. If the Mediator believes that a party needs to take legal advice, they may ask the parties to speak to their solicitor prior to the next session to take that advice. Parties often feel this approach leaves them in control of their matter but offers a structured environment in which to have those discussions and reach agreement.
Mediation is not counselling and should not be used as a forum to discuss reconciliation. Those discussions can be facilitated through a Counsellor should the parties be considering reconciling. Meditation is used once parties have decided to separate as a way to help them settle disputes that have arisen or to decide on how various matters will be settled.
Mediation can still take place if parties do not wish to have face-to-face discussions. Shuttle mediation would then be used and the parties would be in separate rooms with the Mediator moving between them both to facilitate the discussions and negotiations.
On average, mediation takes place across 3 to 5 sessions however some parties achieve settlement is less sessions and some need additional sessions. The Mediator will however inform the parties if they believe that settlement is unlikely to be achieved via Mediation.
Mediation is a voluntary process. This means that both parties must agree to attend mediation for it to proceed. Discussions at mediation are without prejudice and cannot be repeated in open proceedings if mediation fails and a Court application is needed. This often allows parties to feel able to be more open in their discussions and to put forward offers which they perhaps wouldn’t put forward openly otherwise.
The one caveat to mediation being without prejudice is that if financial disclosure takes place at mediation, that disclosure is open and can be utilised in proceedings if necessary.
Mediation can be used to discuss any and all matters on the breakdown of a relationship. This includes (but is not limited to):
- Divorce proceedings including who will issue Petition, the costs of the Divorce and even the wording of the Petition
- Financial matters on separation, to include financial disclosure, interim matters and settlement of financial matters on divorce
- Cohabitation disputes to include division of property, assets and debts upon separation
- Children’s arrangements to include interim and long-term arrangements and specific issues such as schooling or trips.
If an agreement is reached at mediation often parties then instruct a family solicitor to provide advice on what has been agreed. The agreement remains without prejudice until both parties have taken advice, should they wish to do so, and both parties have confirmed the agreement reached in an open forum. The solicitors may need to then record the agreement in an Order before it becomes legally binding on the parties.
Prior to issuing proceedings in relation to Financial matters on Divorce or an application for a Child Arrangements Order, the Applicant will need to visit a Mediator and attend a Mediation Information Assessment Meeting or MIAM. This is a short session which can be attended alone or jointly. During this session the Mediator will consider whether mediation could be used and if not, will sign the application to say that mediation has been attempted and failed or indeed that the matter is not suitable for mediation. If this step is missed, the Court can return the application for the Applicant to attend a MIAM or direct that this is done before the first hearing. To avoid potential delays, it is best practice to ensure the MIAM is attended and the Mediator has signed the application. There are some exemptions from attending a MIAM so it is best to speak with a Solicitor before completing the MIAM and/or application to the Court.