Commonly asked questions.....
Mediation is a process by which couples negotiate face to face about the arrangements for their future with the help of a neutral third party – a mediator. It gives each of you a chance to talk (and listen!) to each other, as opposed to court where people speak for you (solicitors) and to you (the judge).
It is simply:
- A safe place to resolve your differences at your own pace
- An opportunity to recognise the needs of your children as well as yourselves
- A way of helping you to reach agreements which take account of all your needs, concerns and interests
- Comprehensive – We can look at all issues together
- Confidential - Save for the sharing of financial information and any concerns about child protection
- Suitable not only for married couples and civil partners but also if you co-habit, when the law is much less clear.
Mediation has four main principles:
- Mediation is voluntary. There will be no undue pressure on you to participate in the process, although now courts expect you to have attempted mediation before starting court proceedings, and will want to understand why mediation did not happen
- The mediators are impartial – mediators will not direct or express a personal opinion, or take sides. (Although mediators will not give advice, they will provide ideas, information and guidance)
- Mediation is confidential, unless there are issues of child protection, domestic violence, or money laundering. Any set of proposals that are mutually acceptable will be written up by the mediator as a confidential summary, which will not be legally binding until reframed as a legal agreement by solicitors, or reviewed by the court. The confidential summaries cannot be referred to in court proceedings. There must however be comprehensive disclosure of financial information; this can be shared with solicitors or with the court at a later stage
- Decision making rests with the participants; that is, you are treated as the experts in dealing with your children, your finances and your future
Going to court should be a last resort. Mediation should be considered if:
- You don’t want the costs and animosity generated by going to court
- You would like to keep a good relationship with your partner in the future
- You want to retain control over decisions about your financial arrangements or arrangements in relation to the children
- You do not wish to "hand over" such decision making to either your lawyer or to a complete stranger (a judge)
Since 22 April 2014 the courts have made it a requirement for separating couples to attend a meeting to find out about mediation before they are allowed to take disputes over finances or child custody to court (unless exemptions apply – such as in cases of domestic violence). This meeting (called a MIAM) with an appropriately qualified mediator is to find out about mediation and other non-court options.But if you do need to go to court, you will still need to show that you have either attended a Mediation Information & Assessment Meeting or you don’t need to attend a MIAM because of your circumstances. You need to do this by sending a C100 form with your court papers. In some circumstances financial help to pay for legal advice is still available for family matters; it’s worth checking whether you’re eligible.
If you go to court, somebody always 'loses'. You love your children, the judge doesn't! How can a judge possibly know what’s best for you and your family? Evidence is presented in court in a way that blames one party whilst painting the other as the perfect parent. What is said cannot be unheard. How can such an environment create an agreement that you both are happy with? It can't. That's not the judge’s job. Most Family Court Judges agree that court is not the place to best resolve family disputes. This is particularly true where children are concerned. You and your partner/ex partner are the experts on your family so stay in control. You lose control in court. Furthermore, you’ll have spent valuable money unnecessarily, even if you win. Mediation gives you control of the outcome at a fraction of the expense.
Before the first mediation session your mediator will meet with you and your partner/former partner separately about the kind of issues that you have and would like to discuss within mediation. Sometimes these are obvious and sometimes they will be matters that you had not thought about before. If you both decide to go forward with mediation we will arrange the first session. We will ask you to bring to the first session your signed Agreement to Mediate, which we will have given you when we first met. Then you will both come to a joint mediation session.
If financial issues are involved we will give you financial disclosure and budgeting forms at the initial assessment meeting, together with a check -list of documents that you will need to provide. Please bring as much of this information as you can to the first session. We will help you in gathering any outstanding information.
At the beginning of each following session we will review the prior session with you, looking at any progress you may have made and reviewing what needs to be done. We will address any issues that have come up since the last session, and at the end of each session we will discuss the agenda with you and and homework needed for the next session.
No, mediation can be entered into at any point, and on any issue. Some couples have found that even though they cannot reach agreement on all the issues during mediation they can agree many and thereby narrow the remaining ones should they then need to go to court.
Ideally at the beginning of the separation, before litigation becomes an option. That said, mediation can be started at any time and some couples find that it is helpful to use mediation in the future to talk through issues that may arise on the parenting journey.
Mediation sessions generally last 90 minutes. But this process is about YOU. Here at Southern Family Mediation we are flexible and dedicated to helping you to make the best decisions for you and your children to move forward. This could take the form of longer sessions if discussions were flowing and agreements being reached.
We will meet with you until the issues are resolved. A lot depends on the complexity of the case and the number of issues involved, but most clients need three to four mediation sessions to reach a settlement.
Mediation is not just for low-conflict cases. It can also be successful in high-conflict cases as an alternative to litigation; saving far more time, money and At Southern Family Mediation we enjoy the challenge of difficult cases. Often parties will find that what seems difficult on the surface is actually not so difficult because they have the same, or similar, objectives and priorities. Mediation focuses on solutions rather than confrontation, long term solutions that can often be worked out without the conflict and acrimony of litigation.
In instances where two people cannot sit in the same room together, we will meet with each party separately in different rooms. This is called Shuttle Mediation. In Shuttle mediation there is no face to face communication between you and your partner/former partner. You each remain in separate rooms and the mediator “shuttles” between you. It is just as effective, but by its nature can be more costly. Although still significantly less so than court!
Mediation is an adaptable, personalised service at Southampton Family Mediation. Parties can start off with shuttle mediation and then move to being in the same room in later sessions if they feel that it is then possible. There is no ‘one size fits all’ for mediation, the sessions will be designed around your circumstances and needs.
No. Although it is a way of dealing with family disputes without going to court, it is not mediation.
The primary difference between collaborative law and mediation is that with collaborative law each person appoints their own solicitor but instead of conducting negotiations in the traditional way by letter or phone between the solicitors, you all meet together to work things out face to face. Your solicitor will be with you throughout the entire process and you will be able to receive legal advice as you go through the process. A mediator is not involved. The meetings will be between the four of you - you, your partner/former partner and your respective solicitors. At the final meeting, documents detailing the agreements you have reached will be signed. Your solicitors will explain to you what you need to do to give legal effect to these documents.
The key thing to be aware of is that if you fail to reach agreement through this process and subsequently want to issue court proceedings, you cannot use the same solicitor who represented you in collaborative law; you have to appoint a new solicitor. Not all solicitors are trained in the collaborative law process.
At Southern Family Mediation we offer a midway solution between collaborative law and mediation. With collaborative mediation your respective solicitors still accompany you both to mediation, but here the mediator is present also and manages the mediation process. This allows the respective lawyers to focus on you, their client, and not having to manage the mediation process. The significant advantage of collaborative mediation is that if agreement cannot be reached, then you are still able to keep your own solicitor, unlike collaborative law. Collaborative mediation can often save considerable time, and costs, by doing away with much of the traditional solicitor-client-solicitor–client correspondence. These sessions typically take up to two hours.
No. However, we do recommend to all our clients that they each obtain separate legal advice to review the agreements at the end of the mediation process. It is not necessary to be legally represented at the start of mediation as we can give you legal information during the process, however we do not give legal advice. If during the mediation process we think that legal or other advice would benefit you on a particular issue, we will suggest that you instruct a solicitor or other professional. We have very good relationships with local solicitors, FIAs and accountants and we can provide you with a list local to you.
No it isn't. However, at the end of the mediation we will prepare a summary called a Memorandum of Understanding (MOU) and an Open Financial Summary (OFS).These can be used to allow a solicitor to draft a consent order for you. This is more cost-effective because you are only using a solicitor for a small part of the process.
The OFS will contain your financial information and is provided on an ‘open’ basis, which means that it is available to your solicitors and can be referred to in court, either in support of an agreement made together or in contested proceedings. This avoids any need for the information to be provided twice. The MOU is not open ‘Without Prejudice’ which means that it is not legally binding, and cannot be referred to in any subsequent court proceedings, (unless both parties agree and waive privilege). The MOU can be taken a solicitor to prepare legally binding documents e.g. a Consent Order in conjunction with divorce proceedings or a Deed of Separation.
Mediated agreements last longer (court orders over children will need to go back to court to be reviewed or changed) and parties are less likely to return to conflict because the mediated agreement is made and supported by both parties and is not imposed upon them by a judge.
You could always ask a friend to mediate between you and your partner/former partner, but by the very nature of being a friend, and untrained in mediation, they will find it very hard not to take sides or will not know how to help you to move past an impasse. They are also unlikely to have the same level of understanding of the law to be able to provide you with information. This could lead to the situation becoming unnecessarily inflamed. A trained mediator does not know either of you, is completely impartial, and has the benefit of having worked with many couples in similar situations.
We can offer a variety of different mediation options if either, or both, of you are unable to travel to our offices. We can arrange meetings at alternative venues such as near an airport or at a client’s preferred location. We also offer early morning, evening or weekend appointments.
We offer evening, weekend or early morning appointments by arrangement. Whatever suits you best.