Mediation is a voluntary and confidential process which helps adults to resolve issues themselves, rather than having the family court impose a decision on them. Where mediation is successful, it can often be less financially and emotionally costly than court proceedings, and it can leave people feeling that they have retained control rather than been subjected to the uncertainty of court proceedings. Mediation can be used as a means of resolving children disputes and disputes over finances.
How does mediation work?
An independent and trained mediator will host and facilitate a discussion between the parties about the issues on which they disagree, with a view to finding common ground and reaching an agreed settlement. The mediator will typically discuss the options with the parties before deciding on the best way of conducting the mediation, and this might include:
Round-table mediation - where all the parties are present together with the mediator
Shuttle mediation - where each party is in a separate room and the mediator goes back and forth to discuss issues.
The mediator is there to assist families who may be in conflict and need guidance as to how to effectively manage a difficult situation. He or she will adopt a neutral position and will encourage good communication, but will not advise either party. If a resolution is reached then the mediator will summarise this in writing. The summary can form the basis of a legally binding agreement in due course, although it is sensible for the parties to seek legal advice on an agreement they have reached before it is enshrined in a court order.
How mediation and court proceedings intersect
Before making an application to court in relation to a family dispute, the applicant must now attend a Mediation Information and Assessment Meeting (MIAM) to investigate whether mediation is a more suitable way forward than court proceedings. At a MIAM a trained mediator will give information about mediation and help the applicant assess whether it is appropriate. This is designed to encourage people to resolve issues without resorting to court proceedings. The mediator will need to confirm that a MIAM has been attended before a court application can be issued.
Mediation can also be used during the course of court proceedings. A judge may make an interim order and encourage the parties to mediate rather than progressing the case to a final order. The parties may also agree to pause court proceedings while they try to resolve matters through mediation.