Publish date

22 January 2024

What issues can family mediation help with?

Family Mediation Week is taking place from 22 – 26 January 2024. Mediation is still an underutilised process in resolving family disputes and this week is an opportunity to raise awareness of family mediation and of the benefits it can bring to separating families.

Family mediators act impartially and do not apportion blame. Mediation is a forum to try and resolve important issues with the assistance of an independent mediator. It plays an important role in assisting families to address and resolve any issues which arise from separation and divorce.

Here, Kirstie Law and Desmond O’Donnell, Partners in our Family team who are also experienced family mediators, share the most common family disputes that they help resolve using mediation. They find it works very well in the majority of cases, with over a 90% success rate.

Mediation to help agree child arrangements after separation

Disputes over where children will live and how much time they will spend with each parent after a separation or divorce are very common. Mediation can help to resolve these in a much quicker, less acrimonious and less expensive way than going to court. Mediation can also allow for more creative solutions ‘outside the box’ that would not necessarily be something a judge might impose in court.

Some mediators are also qualified to see children as part of the process, to gain their insight into things. It is important to note that the children will not be asked to make decisions about their future, but can be consulted, so that their wishes and feelings can be taken into account but only if they want these shared with their parents.

Mediation to help agree holiday arrangements for children

Holiday arrangements are another issue where disagreements often arise. These can be quite time sensitive. As such, often applying to the family court to resolve the issue is not practical, especially with current waiting times.

Mediation offers a much quicker route to allowing all the parties involved to discuss the issue fairly quickly – a mediator can normally meet with the couple within a few days of their initial enquiry, whereas the court process can take three or four months to get just an initial hearing date. This can be key when trying to agree arrangements for Christmas for example, or for summer holidays.

Mediation also enables parents to understand each other’s concerns, for example, safety issues, such as whether a swimming pool is properly fenced  to protect  young children, or what curfews/restrictions are age  appropriate, or which ought to  be put in place for older children (the consumption of  alcohol and bedtimes being just two examples).

Mediation to resolve financial issues on divorce

When it comes to financial proceedings, it can be very difficult to predict the outcome of cases being decided by a judge. This is because judges have quite a wide discretion, as to what settlement is appropriate in any given case. As such, potentially thousands of pounds could be spent obtaining an order that no one is happy with. It is arguably far easier to live with a settlement into which you have had input, than one that has been imposed on you. In addition, the mediation process can take into account the priorities of both (e.g. one wanting to keep the house, the other a pension) and consider whether a clean break settlement is the best solution.

While a mediator will want both parties to provide financial disclosure, the couple can decide when, and for what period, this is provided. In contrast, the court process has rules e.g. initially bank statements for a year (which may be more than needed in some cases and not long enough in others). All discussions and offers (but not financial disclosure) made within the mediation process take place on a ‘without prejudice’ basis, which allows the participants to be frank and honest in their discussions and offers, without fear of the other being able to disclose the proposals or offers to a judge in court, at a later date.

Mediation to resolve financial issues for former cohabiting couples

With cohabiting couples, there is no discretion for a judge to decide what is fair when it comes to dividing assets on separation. It comes down to strict legal entitlement. In practice, cohabiting couples can disagree as to their respective legal entitlement and, for example, what assurances were given when the property was purchased many years ago.  These proceedings can be risky because the court will normally order the unsuccessful party to pay the other’s costs, and mediation enables the issues to be explored early on and potentially for an agreement to be reached that avoids the significant costs of court proceedings.

Mediation to resolve issues relating to variation of maintenance

Court orders for maintenance can be varied both as to quantum and, in some cases, as to duration. Circumstances change and a maintenance agreement that was fair 10 years earlier, may be unfair now because incomes have changed, or situations have altered, such as whom the child/children are now living with, and whether either party is now cohabiting. Mediation enables up to date disclosure and information to be provided, so that a new maintenance order can be made by agreement, rather than incur the delay and cost of court proceedings.

Mediation to resolve child relocation issues

This is one of the most difficult areas in family law because it can be hard to find a potential area for compromise. By way of example, if one parent wishes to relocate to Australia and the other wishes for the children to remain in the UK, it is unlikely to be acceptable to either if they opt for a country in between. Emotions often run high in these cases because the parent relocating normally has good reasons for wishing to do so, whilst the parent remaining in the UK is genuinely concerned at the potential change in his/her relationship with the child/children. Mediation can still be very useful in these cases in terms of talking through the practicalities if the relocation application is successful or unsuccessful, and in some cases, having considered the other parent’s position, it has been possible to reach agreement in mediation, including for the relocating parent to obtain a Mirror Order in the other country, which provides for the children to spend significant time in the UK and for the parent remaining in the UK to have assistance with costs of visits, to where the child/children will be living.

If you have any questions about any of the topics raised in this article, or want to find out more about family mediation in general, please get in touch.

Heathervale House reception

Keep up to date with our newsletters and events