An important alternative to going to Court
‘All conflicts are capable of peaceful resolution,’ said Nelson Mandela, although it may be hard to envisage this when you are in the middle of a family dispute arising from a relationship breakdown. It is important to remember that family connections can rarely be completely severed, especially if children are involved.
Seeking to win at all costs is not usually the best outcome, as most families will need to preserve some channels of communication. Mediation provides an important alternative to dragging a dispute through the courts and it can be particularly effective at reducing conflict and animosity within a family by independently brokering a compromise.
What is mediation?
Mediation is a voluntary process that you and your former partner attend in order to discuss your problems and see if a solution can be reached. Mediation can be commenced at any time, however, if you wish to bring your case to court then normally you will be required to attend a MIAM (Mediation Information and Assessment Meeting) before making your application. A MIAM is an information session with a mediator but is not mediation itself. It is aimed at informing you of your options and helping you make the choice on how best to proceed for you and your family.
The mediator will facilitate discussion between you and your former partner. As a neutral party, they will allow each of you to air your feelings and views and communicate what is important. Talking with each of you separately, they can help both participants to see the other person’s perspective and encourage you to find common ground. In many cases this helps a couple to agree a solution that is acceptable to both parents and meets the needs of any children.
What types of disputes can mediation help?
Mediation can be helpful in resolving a number of different types of family disputes, which would otherwise need to go to court, such as:
- disputes about where your children will live;
- how much time your children will spend with each of you;
- disagreement over a child’s upbringing, such as choice of school or extra-curricular activities;
- medical treatment for your children;
- separation of finances;
- what time grandparents and extended family can spend with your children; or
- arrangements for the family home.
What are the advantages?
Mediation offers several advantages over going to court:
- Understanding your family needs. No one knows your family’s needs better than you. Reaching a mediated solution means you can tailor arrangements that will best fit you and your family’s requirements. You can consider the details of each of your weekly routines, such as who will take the children to their swimming lessons or football matches at the weekend. You can also suit your own needs if, for example, one of you has irregular or unpredictable working hours.
- Avoids a court forcing a solution on your family. If you proceed via court, a judge will order what is to happen, effectively forcing a solution onto you and your family. This always comes with a risk, as you lose control over what the outcome will be. It may make more sense for you and your partner to mediate and compromise on issues you are comfortable with.
- More cost-effective. Mediation can result in significant cost savings. To begin with, both you and your former partner will pay the one mediator. This is in contrast to you both having to pay for your individual independent legal advice via your own solicitors. In some cases, you each may have a barrister involved as well. The courts also make a charge for bringing applications before them, and for seeking a hearing. Depending on the nature of your dispute, you may be able to avoid court altogether if you can reach an agreement in mediation, thereby avoiding court fees, for example by agreeing arrangements for your children.
- More creative solutions. Quite often mediating couples will have more time and knowledge of their own circumstances to think up solutions that a judge simply would not have the time for. Mediating couples can discuss all eventualities that concern them and come to an understanding as to how they can resolve each issue. Sometimes, solutions you can agree between yourselves may even be outside that which a court could order. For example, in a financial settlement, you may decide that one party will take on a jointly owned negative equity property on the understanding that when it is sold, the other party forgoes any financial interest they may have in same.
- Speedier results. While mediation is a process, and how long it takes varies, it tends to be quicker than issuing court proceedings. It can also yield immediate results. If you agree an issue, such as arrangements for your children at the first mediation session, implementation of this can occur straight away. If you proceed via court, then you are likely to have to await the court date before obtaining progress.
- Keeping communication channels open. Mediation is an open process, where both you and your former partner will be encouraged to discuss the issues you are experiencing, and face them head on. The mediator does not act for either of you. By its very nature, court proceedings can pit you against each other. You will each obtain independent ‘secret’ advice from your solicitors on what your rights and entitlements are. In court, there can be a level of mistrust and suspicion between former partners that does not usually arise in mediation.
- Less conflict and animosity. This tends to result in amicable resolutions with less conflict going forward. There is an openness between mediating couples that you tend not to find during a court process. For couples with children, this is a major advantage not only now, but also into the future when your paths will cross again in relation to your children’s lives.
- Partial results. Even if you can only resolve some of your issues, and still have to go to court to resolve the remaining issues, the mediation can have saved you some time and money.
Does mediation work for everyone?
Mediation is not for everyone. If you have suffered abuse at the hands of your partner then you are unlikely to want to participate in a mediation process with them.
Both people need to want to reach a solution and must be prepared to talk openly and make compromises. If your former partner is not willing, then mediation is unlikely to succeed.
How we can help
If you are embroiled in a family dispute and would like to explore mediation as a route to resolving the dispute, then please contact Hannah Byatt in the family law team on 01480 702207 or email [email protected].
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