A Guide to Divorce Mediation

Mediation is a process that is taken to help people resolve disputes and reach decisions in a structured and controlled way. Mediation is predominantly used in separation cases and usually when a couple have decided to get a divorce. A mediator helps to guide discussions between the couple and ensure that their interactions are constructive and that each party is afforded the chance to speak.

The following article explains mediation more thoroughly, detailing how a session works, the results that it can yield and whether it is a necessity or legal requirement.

What is mediation used for?

Mediation is usually used when a couple cannot communicate amicably or constructively as it helps to guide disputing couples through calm and controlled interactions. It is a flexible undertaking that does not follow a rigid structure and can help to reach solutions to problems such as child access, asset division and property arguments when a couple decides to get a divorce. The mediator has no interest in encouraging the couple to reunite or stay together but serves to help reach agreements to the issues that arise during a separation.

The mediator is not authorised to give advice to the couple with regards to their specific issues and simply serves as a communication aid or impartial guide throughout the discussions. The mediator will have received extensive training in order to do this successfully, and they should maintain neutrality at all times. The mediator will be able to offer information to both parties regarding the law and their options, and can help them recognise when a solicitor's intervention may be necessary or beneficial.

Once agreements are reached through mediation, the mediator will create a "Memorandum of Understanding". This document outlines the agreement that has been made and sets out the couple's proposal. This can then be taken to a solicitor, who can draw up the necessary and required legal documents to cement this agreement. In many cases, the legal document will be a court order, and so this means that the solicitor will forward the draft to the court who then issue this as a legally binding court order.

How does mediation work?

Family mediation usually runs over a course of mediation sessions, each of which normally lasts about an hour and a half. The mediation service may implement different structures to their sessions, but this is a generally accepted form of the service and usually different to lawyer assisted mediation, where a more formal and rigid structure is observed.

Prior to the first mediation session, the mediator will meet with each party independently to ensure that they are comfortable with the planned process and understand how the sessions will work. This meeting can be carried out face to face or by telephone and serves to give each person greater confidence and assurance about the process being undertaken.

During the first mediation session, the couple, along with the mediator, will discuss the agenda for the process and outline the issues that need to be addressed, namely the decisions that cannot be reached amicably and independently. The mediator will help each party recognise the information that will be required and lead into discussions about the issues.

It is normal for mediation to last at least four sessions and this is typically spread out over at least two months. This helps to ensure that the mediation is not too intense, disruptive or demanding of either party. If there are multiple issues that the couple need to address, there can be several more sessions required, and this can take longer to complete, as is the case for more complex issues or significant communication difficulties between a couple.

How can mediation be beneficial?

Mediation is an excellent solution for couples who have tense relationships and who struggle to communicate amicably. When it seems impossible to reach a decision to issues following a separation, mediation can guide a couple gently into recognising the best outcome to suit them. Mediation is much cheaper than legal processes that investigate a couple's situation and make a decision on their behalf. Some mediators charge no fee at all and work for charities, whereas others may be recommended by friends or a solicitor, and they may charge a fee.

What is more, because the couple maintains full involvement in the mediation discussions and they both input in and influence the agreements made, they can appreciate that the solution is one that is appropriate and acceptable to them. Because the couple will have thoroughly reviewed all of the options and constructively discussed alternatives, they can feel assured that their agreement is the most suitable for them and their families. This is beneficial when compared to a court order that makes demands based on an independent investigation.

Mediation allows both parties to maintain power throughout decision processes and allows both people to offer their side and provide information. Again, as the decisions are made by the couple and not for them as in a court involvement, they are able to feel empowered and in control, and this can be incredibly beneficial during a separation that is likely to cause emotional distress and a sense of loss.

Mediation is a significantly useful tool for couples to reach agreeable decisions relating to serious issues in their divorce and costs substantially less than alternative legal options. Mediation works best when coupled with independent legal advice as the neutrality of the sessions are underpinned by each party's best interests as observed and encouraged by their solicitor. With a thorough understanding of legal rights and a guided and controlled communication channel, many couples find this the cheapest and most beneficial option.

Is it compulsory to take part in mediation?

Mediation is not the ideal option for all couples as for the service to be effective, each party needs to trust that the other will be honest, fair and reliable. Unfortunately, during a divorce, some couples are not reasonable or realistic in their demands and so mediation may not be appropriate. What is more, safety is a paramount concern for effective mediation, and so if a couple has experienced any abusive behaviour or domestic violence, mediation is unlikely to be the appropriate course of action.

Mediation is not a compulsory undertaking for these reasons - it is not always suitable or appropriate. That said, a court will normally expect a couple to have taken part in mediation sessions prior to bringing forward their case, particularly with regards to financial or child matters. The court tends to prefer that the couple has at least one mediation session prior to a hearing to be sure that each party understands the process involved and this is referred to as a Mediation Information and Assessment Meeting (MIAM). Some couples will consider a course of mediation sessions for the first time during the MIAM, though it is usually advisable that it is considered before deciding the start court proceedings.

If mediation is carried out, will a solicitor still be required?

Each case will have its own legal needs, and as such, there is no hard and fast rule with regards to whether a solicitor's advice will be required following mediation. However, in the majority of cases, it can be very useful to have independent legal advice to ensure that agreements reached through mediation are fair and appropriate to both parties.

A solicitor's input can be very useful as they can offer advice in the following areas:

• What the content of mediation sessions should be, the questions their client should ask and considerations that should be made before each session
• Whether financial proposals made are fair and realistic
• What information will be needed, particularly financial information, in order to give an honest account in mediation sessions
• Whether the couple has considered all the necessary issues that face them through a divorce
• Whether any agreements that are reached in mediation sessions are fair and whether a court would agree with the decision or not.

The mediator is able to offer the couple legal information such as how court processes work and how orders are made, but they are not authorised to provide legal advice. The mediator is required to remain impartial throughout the whole process and is only there to act as a facilitator to conversations.