Children and mediation

Posted by Christine Plews on
It is becoming increasingly common for solicitors to recommend that disputes about the arrangements for children are resolved at mediation, or at the very least that this is attempted by mothers and fathers.

Lawyers will often advise clients that there are significant cost savings to be had if children's arrangements can be constructively resolved at mediation, rather than through solicitors' letters or through the court. Also, research shows that if agreement is reached between the parents rather than imposed by the court then it is far more likely to be successful.

There is often positive feedback from parties who are able to address the issues that they wish to and to deal with matters bespoke to their personal requirements.

This is particularly important in Children Act cases, where a lot of the issues will not be purely legal. For example, it is important that the arrangements for contact with the children works in practice. If a child has after school clubs and activities on some evenings or is wanting to attend a children's party at the weekend, a practical solution will be just as preferable to the legal strategy of the matter. Proactive solicitors should also bear these sorts of issues in mind, although parties may be reluctant to raise these issues in correspondence.

By discussing matters together the mediation encourages parties to find a constructive approach to their issues, to deal in a civil fashion and often this can be quite amicable. Even when it is not entirely a friendly discussion, there is the opportunity for mediating clients to make their voice heard and a mediator is highly trained in ensuring that neither party is preferred or treated any better than the other. Often parties report back that they benefitted from being able to have a frank discussion with the other party.

By having direct discussions in real time, there are not issues about matters being "lost in translation" through legal jargon, or unexpected tone or content in some solicitor's letters. Also because Children Act matters can be fast moving and very much dependent on the specific circumstances of the matter, solicitor's letters that may no longer be accurate after a sudden change in events can create confusion, misunderstanding and potential hostility between parties. This is avoided by direct discussions.

When handled well, mediation is constructive and allows parties to move at their own pace. It can also be far less expensive than instructing lawyers and going to court even if you also obtain legal advice.

The mediation sessions are an opportunity to express yourself and communicate how you would like matters to be resolved. As such they should be embraced as an opportunity to progress matters in a bespoke fashion. In short, the parties will only really get out of the sessions what they are prepared to put in. A reticent or hostile attitude will not advance discussions and it may break down the limited goodwill that the parties before any settlement can be reached.

It is often helpful to work with mediators that have legal training as they can give information about the court's likely approach in any given situation.

However, where there are real concerns about the parties' inequality of bargaining power or where there have been violent or intimidating incidents between the parties, mediation may not be appropriate or helpful. Also, if there is an immediate risk to children's safety, a swift and firm response may instead be needed. However, where parties are able to express themselves on a 'level playing field' mediation offers a bespoke solution to children law issues and a significant cost saving.

About the Author

Christine leads the Family Law Practice Group and specialises in matters arising out of divorce and separation, including cohabitee disputes. She is an experienced mediator.

Christine Plews
Email Christine
01865 254213

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