Demystifying mediation – what is family mediation?

Family mediation has been around for more than 40 years, and it’s a great option for those who are looking to avoid court. Even though mediation is increasing in popularity, there is still a lot of confusion about what mediation involves. In this blog we explore the top five things you need to know about mediation, and how you can find a mediator.

1.Mediation is voluntary.

No one can be forced to mediate.  It is essential for both of you to agree to take part in mediation. Each of you will be asked to sign an agreement to mediate and agree to commit to the process.

2. Information NOT advice.

A mediator can’t provide either you or your ex with legal advice and they can’t tell you whether or not the agreement you are working towards is fair or sensible. The mediator can provide you with general legal information to support your decision-making and also signpost you to other professionals that may be able to help.

3. Mediation is confidential.

Apart from a couple of exceptions, all the discussions in mediation are confidential. This means that neither of you (nor the mediator) can discuss what has been said in mediation with anyone, apart from your legal or financial advisors, for example, unless you have the other’s permission. In fact, when you sign up for mediation, there will be a whole section dedicated to confidentiality in the agreement to mediate! Discussions are also “without prejudice” which means that, if you are unable to reach an agreement and you end up going to court, you can’t refer to the discussions in the court proceedings.

4. Mediation is impartial.

Your mediator will act impartially at all times and they will be completely neutral as to the agreement that you and your ex reach.

5. Mediation is binding.

Actually, this should be not binding because the agreement you and your ex reach in mediation is not of itself binding on either of you. However, you can make it binding if you both want it to be. A lawyer will help you turn your agreement into a binding court order. By doing this, it means that if either of you try to go back on the agreement or not do what you said you would, the other can take action to enforce the agreement.

How do I find a mediator?

Finding a mediator can be a minefield. Anyone can call themselves a mediator, even if they have no qualifications or training in mediation and are not covered by insurance if they make a mistake.

However, most mediators will have been trained by a professional organisation. If you are looking for someone to mediate a family dispute (for example, a property dispute or the arrangements for children) then the best place to start is the Family Mediation Council. There, you’ll be able to find mediators who have been properly trained, some will also be accredited by a professional body and all should have insurance. You can select mediators who:

  • offer legal aid (remember it is easier to get legal aid for mediation than it is for legal advice because, for mediation, there doesn’t have to have been domestic abuse);
  • are qualified to consult directly with children in mediation;
  • are near to you; or
  • who offer mediation information and assessment meetings (otherwise known as MIAMs) – these are the meetings you have to attend before you can start court proceedings. Importantly, for unmarried couples, a MIAM has to come before court proceedings relating to children can be started. Court proceedings can run in tandem with mediation, or can be issued if mediation doesn’t work.

It's important that you and your ex choose the same mediator for the first separate meeting so that you can then go on to meet together if everyone (including the mediator) agrees that mediation is the way forward.

If you already both have lawyers involved, then you might want to consider a one-day lawyer-assisted mediation. You will need to find a family mediator who is trained in lawyer-assisted mediation (it’s also sometimes called hybrid mediation) or a family mediator who is also a civil and commercial mediator, such as someone accredited by CEDR. This type of mediation can suit tricky property disputes. Using a mediator who is trained in both family mediation and civil and commercial mediation can be particularly useful for resolving disputes between unmarried couples which, depending on what’s in dispute, can straddle both family and civil law. Within our team of family lawyers, we have several mediators trained in this type of mediation. 

If you’re looking for a mediator or want to know more about mediation, our family and children law team can help. Visit our mediation page to find out more.

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