What is mediation?
Mediation is a voluntary and confidential process that involves an independent third-party (a “mediator”). The role of the mediator is to facilitate discussions between the parties (e.g. a husband and a wife). The mediation process is fundamentally founded on reciprocal cooperation and respect, as opposed to adversarial strategy. One must also be alive to the fact that mediation is not appropriate in all cases, for example in those cases where there might be an imbalance of power between the parties; if this is the case, a consideration of shuttle or hybrid / lawyer assisted mediation might be sensible. In the former, the mediator moves between the parties, who are seated in separate rooms and in the latter, a party’s solicitor can accompany them to all or some of the mediation sessions.
Where mediation is appropriate: the mediator’s role is not to make decisions for or impose an outcome on the parties; rather, the mediator’s role is neutral and is to guide the parties in reaching an agreement on the various issues arising subsequent to their separation or divorce.
The purpose of the confidential nature of the mediation process is to encourage an open dialogue between the parties in attendance. The consequence of this is that anything discussed during the mediation process cannot be discussed in court if the process is unsuccessful; the intention being to allow for more flexible negotiations and compromise.
If the (financial) mediation results in an agreement, it is recorded in a Memorandum of Understanding (a “MoU”). A MoU summarises all and any financial terms of agreement. The MoU will be marked as “Without Prejudice”, which means that the terms are not yet binding. This is distinctly different to any financial disclosure exchanged by way of a Financial Statement, which will be an ‘open’ document and thus visible outside of the mediation process. Once the MoU has been circulated by the mediator, it is suggested that the parties separately seek independent legal advice on its terms so to ensure that all has been considered and is understood. Thereafter and if agreed, the solicitors will convert the terms of the MoU into a draft financial Consent Order – this is the draft document that is latterly sent to the Court for a Judge to consider, (hopefully) approve and, at the appropriate time, make legally enforceable.
In the case of a successful mediation regarding child arrangements, a Parenting Plan is usually created. Such a document will summarise the child living arrangements and can also address more delicate matters (such as the process to follow when introducing a new partner to children). A Parenting Plan is not a legally binding document, but it can be very helpful in recording intentions with regard to parenting.
What is the role of mediation in financial remedy and children court proceedings?
In an attempt to alleviate some of the pressure placed on the family courts and facilitate resolving matters more amicably, the Government announced important changes to the role of mediation in financial remedy and children court proceedings. These changes were implemented in April 2024.
Whilst mediation is not strictly compulsory, there is an obligation on the parties to explore mediation absent certain permitted exemptions.
Parties will be required to attend an initial Mediation Information and Assessment Meeting (known as a “MIAM”) to determine whether mediation is suitable for their individual circumstances. As mentioned, however, there will be permitted exemptions to attending mediation in cases; such exemptions might be applicable in cases involving domestic violence or where there are legitimate reasons as to why mediation would be inappropriate.
Many believe that the updated approach provides a pragmatic route; between obliging the parties to consider mediation, whilst also acknowledging that it may not be appropriate in all cases.
How can mediation simplify the divorce and separation process?
As indicated above, the mediation process features several benefits to aide in the simplification of the divorce and separation process, particularly when compared to traditional court proceedings. These benefits include:
Cost Efficiency: if the mediation is successful, it can be significantly less expensive than traditional court proceedings.
Time Efficiency: unlike in the court process, the parties have control and autonomy over the agenda for mediation and the number of sessions that they attend. The mediator will also carefully oversee the process and ensure that it does not continue if it is proved to be unfruitful or unhelpful.
Furthermore and unlike in the court process, where a Judge will ultimately decide the outcome, mediation allows both parties to have a say in the resolution. This sense of control can be empowering and may result in more satisfactory agreements, which both parties are then more likely to honour.
Emotional Wellbeing: one of the key advantages of mediation is its focus on reducing conflict and building upon effective communication between the parties. Litigation is often combative, leading to increased stress, damaged relations and emotional turmoil. Conversely, mediation can promote a calmer, more cooperative environment, thereby reducing the emotional strain on both parties.
Confidentiality: mediation is a private process. The element of confidentiality can reduce anxiety and allow the parties to discuss sensitive issues and/or make allowances without fear of judgment or exposure. Mediation is also a way of keeping details of one’s relationship out of the public eye; this is particularly relevant since journalists will soon be able to request a transparency order in all family courts to allow them to report what they see and hear, access key documents and speak to families – provided they keep them anonymous.
As discussed above, mediation can offer a flexible, cost-effective and emotionally supportive way for individuals to navigate their divorce or separation. By reducing conflict, providing a confidential space for discussion and allowing both parties to retain control over the outcome, it can most definitely said that, compared to the court process, mediation presents a more simplified path through divorce and separation – something that is definitely worth one’s careful consideration.
For further information, please contact Aoife Devereaux, Associate in the Family Department or, alternatively, telephone on 020 7465 4300.
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