Mediation - Why use it?
We asked National Family Mediation all your questions on when and why you should consider using mediation… Find out all the answers here…
Q: If I am trying to spend time with my child, will the court make me attend mediation?
The current pre-application protocol which applies in court will ensure that the person applying to the court to spend time with their child will be obliged to attend a Mediation Information and Assessment Meeting (MIAM) to find out more about mediation, discuss their situation with the mediator and have the opportunity to decide whether it might be an option for them.
However, even though the court might order you to attend a MIAM, they will not force you to mediate with the other parent. This is a decision that is made by you, the other parent to the child and the mediator. Mediation is a voluntary process and will only work if both parties feel that it might work to resolve their dispute.
Q: I have been told that a mediator is as expensive as a solicitor, so what is the point?
Mediation services charge different rates. It is important that you do your homework on costs before deciding on which mediation service to use. Please be aware that National Family Mediation operates a not-for-profit network across England and Wales, which means that our charges are considerably less than our private mediation service counterparts. The majority of our services charge clients on a sliding scale according to the client income. Please note that legal aid is also still available for mediation, so if you are eligible for legal aid following an assessment done by the mediator, you might have your mediation paid for by the government.
Q: Is an agreement made during mediation legally binding?
No, it isn't. However, you can use the documents drafted at the end of mediation, called an outcomes summary or memorandum of understanding, 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 government is also funding the drafting of consent orders through the 'legal help for mediation' scheme. Your Solicitor can access this by asking your mediator for a CW5 form. It is well evidenced that mediated outcomes are cheaper, quicker and longer lasting, especially when it comes to arrangements for the children.
Q: Is it only child arrangements that we can reach agreement on or can we discuss other things like maintenance?
You can bring any dispute to mediation. This includes issues to do with your property, whether renting or owned, finances including stocks, shares, savings, business portfolios, heirlooms, child or spousal maintenance, debts; child arrangements like who the child will live with, when each of you will spend time with the child, and other issues like pets or household items. Together you and your ex-partner will set the agenda, so nothing is too small or too big to mention and discuss. Please note that the terms ‘access’ and ‘custody’ and ‘contact’ and ‘residence’ are no longer used and have been replaced with child arrangements orders which set out who a child should live with and spend time with.
Q: I have heard that if my ex doesn't want to budge or compromise that I will have to just give in, is this true?
This is definitely not true. Mediation is about putting all the issues on the table, and developing options about how the dispute might be resolved and then negotiating an agreement based on the options. Yourself and the other party will discuss the issues together, develop the options together and negotiate an agreement together that will ensure you both have your say, have the opportunity to be heard and then make informed decisions. The mediator is only there to facilitate the discussions, but will assist you to reality check all of your proposed options. They will also ensure that both parties are satisfied with the agreements in place before drafting the necessary paperwork. It is important that you feel satisfied with any arrangements that are made in mediation, because they are your arrangements at the end of the day and people only usually stick to something they have had a part in agreeing to.
Q: My ex won't even obey a court order so how would mediation help in my situation?
Research tells us that people are more likely to stick to an agreement where they have been part of the decision making as opposed to being told what to do by a Judge. The mediator would also be looking to find out why your ex-partner did not stick to the Court Order. It may be that you can, with the help of the mediator, sort out the problems which are preventing it from working. You don’t get the chance to do this in Court. It sounds in this situation like you have nothing to lose by trying it.
Q: I want any agreement between my ex and me to be legally binding, so my ex can't back out of it - I have heard that mediation isn't, is this true?
Yes, this is true. Our experience is that if both parties complete the mediation process, they very rarely back out of it. This is because their views and concerns have already been incorporated into the agreement so it is in their interests to stick to it.
Documents drafted at the end of mediation, sometimes called an outcomes summary or memorandum of understanding, can be drafted into a consent order by a solicitor to make them legally binding. This is more cost-effective because you are only using a solicitor for a small part of the process. The government is also funding the drafting of consent orders through the 'legal help for mediation' scheme. Your Solicitor can access this by asking your mediator for a CW5 form. It is well evidenced that mediated outcomes are cheaper, quicker and longer lasting, especially when it comes to arrangements for the children - so mediation is the best way to discuss, negotiate and make agreements without the hefty price tag attached.
Q: I am pretty certain that mediation is not the route for me to go down, I am not keen to waste money on mediation classes with my ex
This sounds like you have misunderstood what mediation is. You will not be sent on any classes. Quite the opposite – in mediation you as the parents are treated as the experts because you know your family and their needs better than anyone else. Mediation is designed to help you stay as separated parents who can work effectively together to parent your children in a new business-like relationship. You can attend an introductory meeting with a mediator to discuss your situation, find out more about whether mediation can help you and also look at the costs. It may be you are eligible for free mediation via Legal Aid and you will be assessed for this at the introductory meeting. Even if you are not eligible for free mediation, it is still significantly cheaper than negotiating via Solicitors especially if you end up going to Court.
National Family Mediation
Please note that this Q&A provided by DAD.info in partnership with National Family Mediation contains general information about sorting out your separation. The information is not advice and should not be treated as such. You acknowledge that, because of the limited nature of such communication, any legal assistance you may receive using any such facility is likely to be incomplete. Any legal assistance or information you may receive using any such facility does not constitute legal advice and accordingly should not be relied upon
National Family Mediation is the largest provider of family mediation in the UK. We deliver family mediation and support services across 500 locations. Our professionally trained mediators, experts in conflict resolution and family law, assist families affected by breakdown and specifically, couples affected by divorce / separation to make joint decisions about their finance, property and long-term solutions for their children.
We recognise that you want to focus on your children but this may be a challenge with all the other responsibilities that come with separation. Mediation encourages parents affected by separation to collaborate (where appropriate), as it highlights the benefits to children when parents work together, which include;
- Children do best when parents work together, they’ll be healthier, happier and do better in school with two parents supporting them throughout their childhood
- Your children want to know they matter to both of you, so it's better when you both collaborate to make things better for them
Family mediation is also cost-effective, quicker, provides for longer-term resolution and has better evidence-based outcomes than the often costly (emotionally and financially) stressful court route.
About the author
Clare Kirby qualified as a lawyer in 1983 and worked for several years in industry. She founded Kirby & Co in 1997. As a member of Resolution and an advanced member of the Law Society’s Family Law Panel she is experienced and respected in the field of family law. Trained as a collaborative lawyer, Clare offers clients a range of options - traditional, and collaborative law - to best meet the needs of the individual clients.
Updated: February 2018