Mediation is a great tool to facilitate helpful conversations between separating couples. As well as making sure that you and your partner have set aside a specific time when you both know that you are going to focus on resolving matters, a trained and independent third party will be able to guide you through the topics that you need to address, to deal with all eventualities.
If you and your former partner have agreed to participate in mediation, what should you expect and how should you prepare to ensure that you achieve a satisfactory outcome?
What is a mediator?
A mediator is an independent and trained professional who will guide you and your partner through the discussions required to reach an amicable agreement on legal matters. They have to remain independent and impartial throughout the process, and will not make any decisions for you. They can inform you as to facts, and make suggestions to help you consider all aspects of your separation.
A mediator is not a counsellor, and will not give you marriage guidance or encourage you to look at your relationship; they will help you in moving forward with your decision that you are ready to separate.
Will I come face-to-face with my former partner?
Mediators normally meet with you individually first, to get an idea of each person’s objectives before organising a joint session, if you both feel comfortable doing this.
If you do not wish to be in the same room together then ‘shuttle mediation’ may be an option. This is when you remain in separate rooms and the mediator shuttles between you to try and facilitate discussions over difficult issues.
You may find that after one or two shuttle sessions you are more comfortable at the thought of sitting face-to-face with your former partner, and you can ask the mediator to arrange this if your former partner is also in agreement.
Keep an open mind, however – you are likely to make far more progress if you can sit in the same room and commit to working on these issues together.
What to expect at your first session?
Initially, you will attend a mediation information and assessment meeting (known as a MIAM) with your chosen mediator who will outline how mediation works. They will also explain payment arrangements, timings and what you should expect. You will attend this initial session without your partner and it usually lasts around 45 minutes.
Where will it take place?
The mediation often occurs at the mediator’s office, or at some other neutral venue, but most mediators also facilitate sessions via video call.
Do I need to know my legal rights?
Before you commence mediation, you need to understand your legal rights and responsibilities with regard to financial provision and arrangements for your children.
It is a good idea to have also engaged a solicitor, separately to a mediator, so that you can take advice based on what a court might do in cases like yours. It is helpful to speak to a solicitor who is fully supportive of the mediation process and will help you to keep an open mind in mediation discussions, rather than looking to litigate. You can attend mediation sessions feeling confident, knowing what kind of outcome is realistic. We will also identify any potential problems to try and resolve and suggest questions you will need to raise.
Should I take anything with me?
Try and enter each mediation session with a focus on what you wish to achieve- You might like to make a list to bring with you. This will jog your memory and also give you something on which to make a brief note of what you discussed and agreed during your mediation.
If you are attending mediation in relation to your financial separation, it is important to have a good idea of all the assets you have jointly and in your sole name. For example:
- property and mortgage details;
- savings and investments;
- business assets;
- pensions; and
- other valuable assets, such as cars.
It is important to be open and honest about this. Any attempt to hide assets may render an agreement void. You will also need to discuss your current income from salary or any other sources, such as benefits or investments.
You should make a note of any debts or other financial liabilities and list out what your usual monthly expenses are. If you jointly own property, it is best to have a valuation of this before mediation, especially if one of you intends to stay on in the home and buy the other person out.
What if there’s too much to talk about?
You may know in advance which issues are likely to be hardest to resolve with your former partner. Be realistic and split these ‘big’ issues into one or two per session.
If you are entering mediation to sort arrangements for your children, try and think through each scenario where a difficult issue might arise. For example:
- where your children spend time at birthdays, Christmas or other festivals, Mother’s and Father’s Days and school holidays;
- where children will go to school and what will happen at plays and parents’ evenings;
- do you need to discuss how and when any new partners may be introduced to your children;
- do contact arrangements with extended family members need to be agreed, such as with grandparents; and
- what happens if an emergency arises? Who should be the first point of contact.
Review progress after each session
Do not expect all your issues to be resolved at your first session together. It usually takes a number of sessions, so do not feel disheartened; you are likely to attend a number of sessions before your mediation concludes.
During and after each session, we recommend you make notes of the issues you discussed and agreed, as well as any matters that come into your head following the mediation that you forgot to mention at the time or that you feel need clarifying.
If you have any queries or questions in between mediation sessions, you can seek advice from your solicitor.
What if we cannot reach an agreement?
If an agreement cannot be achieved, or the mediator feels that it is not beneficial to continue with the mediation, then you should contact your solicitor. At that stage, it may be necessary to consider an alternate route to reaching a resolution.
While mediation helps many people, it is not always successful. Despite your best efforts, it may be that you reach a stalemate over a certain issue or issues. Do not feel that this has been time or money wasted; even partial agreement on some matters at mediation can be a benefit as it will narrow the issues and save you time and money at any future court hearing.
What happens if agreement is reached?
If you reach an agreement at mediation, the mediator will draft a document called A Memorandum of Understanding for you both to sign. This will outline the terms you have agreed although it will not be legally binding. In order to make your agreement legally binding you should contact your solicitor who will advise you further on obtaining a court order by consent to ensure the terms will be binding.
For further information on any aspect of relationship breakdown or divorce, please contact the family law team on 01732 747900 or email [email protected]. Warners has offices in Sevenoaks and Tonbridge in Kent.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.