How to avoid family mediation going wrong
As active members of Resolution, we regularly encourage clients to explore the alternatives to court proceedings, to resolve disputes that may arise following relationship breakdown. One of these is mediation, and many of our clients at least try this process. For most, it works very well, as has been demonstrated by our case study.
The main goal of mediation is to help parties come to a mutual solution through open communication. Even if a final solution isn't reached, it doesn't mean that mediation has failed, since many intermediate issues and problems may have been solved along the way, especially where quick decisions are needed, perhaps with regards to childcare or contact. For some however, mediation can result in a further breakdown of trust and communication, in an already difficult situation.
We would suggest that in family matters, a lawyer-mediator (someone who is a qualified lawyer as well as a mediator) might be the best option for mediation. Not only do they have an understanding of the law, but they are also often accredited. Whilst they will not be able to advise the parties within the mediation, the discussions are more likely to be focused on what is legally possible and attainable. They also have skills to encourage both parties to stay at the mediation table and see through mediation to a successful conclusion.
Some of the pitfalls to this are around communication and enabling both parties to explain what they are seeking, why and be open about the past, current and future situation. A cardinal rule of mediation is no surprises either about personal or financial matters! An atmosphere of honest and open dialogue over a number of sessions inspires confidence in the process.
It is also important to seek legal advice concurrent with any mediation process so that realistic negotiations are entered into. Your legal fees are likely to be significantly lower whilst attending mediation, and so it is very much worth seeking early and continuing legal advice on the implications of the discussions and potential agreements within mediation. This can help to avoid the chances of figures being misrepresented, or incorrectly interpreted. It will also ensure that any agreement reached is in line with what a court may order – vital if you will be seeking a consent order at the end of mediation.
Finally, it is important to fully engage in the process and work to find solutions to matters. It is not sufficient to be an observer. The mediator will not check the scope or accuracy of the financial information and so if there is uncertainty as to a figure, ask. If there is a missing bank statement, ask. If you simply do not understand, ask. The mediator will be well placed to assist with such queries, and will be able to provide support, where necessary. If the mediator is not able to assist, this will not be because they are trying to be difficult, rather that it is most likely a question that you should ask your lawyer.
Mediation is not a process for those who wish to cut corners or avoid answering questions. It is not a different way of resolving matters as it follows the court's requirements for disclosure. It is just a different method of reaching a proposal. If parties engage fully and openly, and avoid the pitfalls, it can be an excellent forum to finalise family matters.
Blake Morgan is supporting Family Mediation Week, which runs from 21st – 25th January 2019. Family Mediation Week aims to raise awareness of mediation and how it can help separating families manage their issues collaboratively and productively.
Our family law experts Christine Plews and Flora Grossman are both qualified family mediators and Christine is accredited by the Family Mediation Council. During a mediation they will provide legal and financial information in an impartial way to help you understand the options available to you. The choices and decisions are yours and the mediator will not make judgment about your individual or joint situation, nor provide advice on your ‘best interests’. They will help you both to reality test the options and discuss with you both which solutions might work best for you and your family. They often work with other professionals such as accountants and counsellors to enhance the process.