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Mediation – frequently asked questions

2 Dec 2021

Reports state that this week, the justice secretary, Dominic Raab, has told the justice committee of the House of Commons that the Government wants to make better use of ADR and mediation and he “would be in the market for something really quite drastic and bold in that area”.  This is welcome news for those practicing in the field of mediation as we have been advocating for more solution-based resolutions, and a movement away from contested court proceedings, where appropriate, for a very long time.

So, what is mediation?

Mediation is a confidential and voluntary process for its participants and the mediator. It seeks to provide willing and cooperative participants a structured, safe and secure environment to consider the consequences of their separation, and seek solutions with the assistance of a neutral third party. This space will then allow them to make their own informed decisions as to how they might navigate the next stage of their lives, both in terms of their financial arrangements and the arrangements for their children.

If the mediator does not make any decisions, what does the mediator do?

The mediator is an impartial and neutral third party who cannot tell an individual what they should do. The mediator must act in an even-handed and balanced manner to facilitate (or sometimes direct) a couple’s discussions which ultimately allow them to reach their own informed decisions. A mediator in this family context is facilitative in nature and they will not be required to intervene unless it is necessary to refocus or move discussions along.

If an individual expresses any concern for this general principle underpinning mediation, and they suggest that they might require a decision imposed upon them, it will of course be necessary to explore the reasons behind this on a case by case basis. In reality, this sort of issue is unlikely to arise, given that most individuals will wish to retain their autonomy and will therefore embrace the ability to maintain this throughout mediation.

Is it right for me and my family?

First and foremost, in assessing whether mediation will be beneficial for a particular family, a mediator will need to consider with each individual whether they have an understanding and accept that their relationship has ended. It will be difficult for a mediator to help a family with addressing the matters that require discussion if one person is either seeking a reconciliation or simply has not yet come to terms with the fact that their relationship has ended. That is perfectly common and understandable. If an individual is not emotionally ready to mediate, then it may be that it is appropriate to suggest that they take some time, and seek support from family members or friends, or other appropriate professionals before mediation can commence.

Initial insights into the benefit of mediation for a particular family may come from the way in which either individual discusses or refers to the needs of their children. If it is clear that both individuals are seeking solutions that are genuinely in the best interests of the children, this will be a good indicator that mediation will be beneficial for a family. Conversely, if the mediator makes an assessment that either or both of the individual’s behaviour or planned actions may be detrimental to any child of the family, this may militate against mediation. Any serious concerns as to the welfare of any child of the family must be addressed by the mediator appropriately.

In the event both individuals have chosen to mediate of their own free will, this will form a solid foundation for the mediation.

Is there anything else I need to be aware of?

Each individual must understand that the conversations had in mediation are confidential, and therefore he or she should not discuss any of the matters discussed or decided with anyone outside of mediation (save for in the event of taking legal or other financial advice).

Although all financial information provided in mediation is given on an open basis, and any information of concern relating to the welfare of a child will not be the subject of legal privilege, in general the discussions had in mediation may not be referred to in any legal proceedings. For many, this will be seen as beneficial to their family, as it will allow those that want to negotiate without fear of those matters being raised in potential court proceedings to express their concerns and wishes freely. If both parties have strong feelings over avoiding a rigid court process, then this ability to speak on a without prejudice basis will be hugely beneficial to a family.

What does it cost?

Mediation is a cost-effective form of resolving a dispute, as unlike with solicitors, the couple only need to instruct one mediator meaning that the cost of the mediator is shared between the couple. Generally, mediation takes far less time to conclude than court proceedings and a couple may only need 3 – 6 sessions with a mediator to reach a final resolution. Your individual mediator will be able to confirm the exact cost with you, and confirm with you how those fees will be met.

How we can help

If after the reading the above, you think that mediation might be a suitable method of resolving the issues arising from your separation, please get in touch with Camilla Hooper, mediator at Cripps.

Camilla Hooper

Senior Associate and Mediator