Is mediation confidential?

Arrangements for Children

The confidentiality which protects discussions at mediation is particularly of benefit where mediation is used to discuss arrangements for children. By contrast with mediation, solicitors cannot correspond or negotiate on a without prejudice basis about arrangements for children and this can prevent solutions being suggested, for fear of weakening a case if the matter went to Court. Mediation provides a confidential forum for parents to suggest and explore any number of options to try and find a solution that works for their family.

If an agreement is reached at mediation about arrangements for children, the mediator will work with the parents to produce a Parenting Plan which records what has been agreed and which can be referred to in the future if needed. The Parenting Plan is confidential to the parties, in that it ought not to be shared with third parties without the express agreement of the other parent, but it is not without prejudice. This means that if either parent needed to refer matters to the Family Court in the future, the Court would be able to view the Parenting Plan. The Court would not, however, be able to hear any information about the discussions at mediation that led to the creation of the Parenting Plan.

Financial Order

If an agreement is reached in mediation regarding the division of shared finances, the mediator will produce two documents for the clients. The first is an ‘Open Financial Statement’, which records the financial disclosure that the parties have exchanged within mediation and will include an asset schedule. This document is ‘open’, meaning it can be referred to in legal proceedings.

The second document the mediator will produce is a ‘Memorandum of Understanding’, which records the agreement that has been reached at mediation. That document is without prejudice, meaning it cannot be referred to in legal proceedings. The mediator will recommend that parties take independent legal advice upon the contents of the Memorandum of Understanding. In the case of a divorce, the parties will then need to convert the Memorandum of Understanding into a consent order, for which they are likely to require legal assistance, and submit that to the Family Court for approval. The terms of the consent order when made, and most often when in draft before approval, are not without prejudice, which is why mediators will particularly recommend that both clients seek independent legal advice before converting a Memorandum of Understanding into a consent order.

Blake Morgan’s specialist family mediators can assist separating families to reach agreements on all matters arising from their separation. We work proactively and constructively with families, exploring options and considering practical solutions to try to enable families to move forward without acrimony or distress.