Family Mediation – How to Guide

We are joining Resolution in supporting the Family Mediation Council’s ‘Mediation Week’ which runs from 18th January 2021 to 22nd January 2021. At Poole Alcock, we recognise that our clients need a wide variety of options to help navigate the tumultuous process of a family breakdown. Mediation is one of these many options, this guide provides a helpful summary of the process for those looking to mediate.

What is family mediation?

Mediation is a form of alternative dispute resolution in which an independent, neutral third party called a mediator aims to help the disputing parties’ come to an agreed settlement. It is often used as an alternative to court proceedings in the first instance. At any time during ongoing proceedings parties’ can ask the court to pause their case so that they can attempt to mediate.
Mediation is just one of the many types of alternative dispute resolution. Other types include but are not limited to: arbitration, negotiation, early neutral evaluation and expert determination. All forms of alternative dispute resolution aim to help parties’ settle their differences without having to attend court.

Family Mediation can be split into three groups: Sole Mediation, Anchor Mediation and Co-mediation. Sole mediation aims to facilitate the parties’ discussions in a way that allows the individuals to eventually reach a mutual agreement about their case. It involves the instruction of a single mediator to moderate the discussion between the parties’. Similarly, Co-mediation involves two mediators who combine their expertise to help facilitate discussion between the parties’. Finally, Anchor Mediation combines Sole and Co-mediation, with a single mediator conducting parts of the mediation and with another joining temporarily or permanently for other parts. This article will focus on Sole Mediation as it is currently the most common form of mediation for family matters.

The Family Mediation Service Process

The process of a mediation will vary slightly from case to case depending upon the facts, the complexity of the issues and the natures of the parties’. This is not a bad thing and it is one of the reasons mediation is looked upon so favourably. It allows parties’ to step away from the more ridged court process, whilst still providing an environment in which parties’ can attempt to settle matters.

There are four key stages that most family mediations go through:

1. Opening Phase
   The parties’ will be brought together in a joint session with the mediator. The mediator will make an opening statement in which they will lay out their role and their duties and responsibilities in relation to the mediation. They will often highlight their role as a facilitator and note that it is the parties’ who are in control of what they end up agreeing on the day. They will also highlight the neutrality of their position in the process.
   After the mediator has spoken, both parties’ will be invited to read out their anchor statements. This allows each side to put forward their case and any concerns they wish to raise. The parties’ will be encouraged not to interrupt each other and to engage in listening to the other side’s view fully. This allows both parties’ to have their full uninterrupted say at the beginning of the mediation before they start to try and work towards common ground.
2. Identifying the Issues and Setting the Agenda
   After the first joint session the parties’ may be split into separate rooms to have private meetings with the mediator. During these sessions the mediator will discuss the positions of the individual parties’ in more depth. These discussions are completely confidential and the mediator will not reveal any of the information discussed to the other side, unless they are specifically asked to do so. These sessions are also useful to allow the other party to vent or let out any emotions they may have been holding back from the joint session.
   The number of these private meetings will vary from case to case. The mediator may have to spend longer with one party or may need to take time to consider what they have learned from another. Therefore, it is important to prepare yourself for prolonged periods of waiting whilst the mediator is with the other party. The information the mediator gathers will allow them to create an agenda of issues that need to be dealt with.
3. Discussion and Negotiation
   In this phase, the agenda will help guide discussions the mediator will encourage discussions and aim to develop a ‘joint problem solving approach.’ When discussing certain aspects of the case the mediator will ask open questions and ‘reality test’ their positions. They will try to encourage the parties’ to look at their proposals in a realistic light and ask the parties’ to ‘step into each other’s shoes’. The mediator will also encourage both parties’ to look to the future potential settlement options as opposed to allowing them to dwell further on the past. The mediator will keep an eye on how the negotiation is unfolding. If they see that progress is coming to a halt they may suggest a way to try and break a forming deadlock by, for example, asking both parties’ to step back and take a break for a while.
4. Concluding Mediation
   If the mediation is successful the mediator will draw up a mediation agreement laying out what has been agreed and what, if anything, remains unresolved. The parties’ legal representatives will draft an agreement for submission and approval to the court.

Exemptions to Family Mediation

In Family law you are legally required to consider mediation before applying to the court. To do so you must attend a Mediation Information and Assessment Meeting (MIAM). A MIAM is a meeting with a qualified mediator in which they assess the suitability of mediation as a vehicle to help resolve the dispute. They will also provide the parties’ with more information about the mediation process or any other non-court alternatives the parties’ may want to look into.

There are exemptions to the requirement to attend a MIAM, some of these include:

• If there is evidence of domestic violence within the relationship.
• If there are child protection concerns.
• If the matter is urgent i.e. there is a risk to life, liberty or physical safety.
• If you have attended MIAM in the last four months concerning the same or substantially the same issue.
• If you have filed a relevant Family application in the last four months confirming a MIAM exemption applies and the issue is the same or substantially the same.

However, if you do not meet any of the exemptions and it is established that mediation would be a suitable way forward then you will be required to engage in attending a MIAM, before making a court application.

Is Family Mediation right for me?

There are many advantages to using the Mediation process. It can be quicker, more cost-effective and more flexible than court proceedings. It allows parties’ to discuss their issues in a more informal and less confrontational manner. It is also a process that better preserves the ability for people to rebuild already tenuous relationships in the future.
With that being said, Mediation is not appropriate in all cases and you should always speak to your solicitor about what is right for your case. However, if Mediation is deemed suitable for your case, it is an excellent tool for helping to resolve family disputes and parties’ should approach the process with open minds and a desire to reach agreement outside of court.

If you would like more information on family mediation and how we at Poole Alcock can help you, contact our team today or visit our Divorce and Family Law page for further information.