Resolving family law disputes in mediation

Government cutbacks in the public sector mean it is now expensive and takes a long time for family courts to deal with children and financial applications. Mediation however, can be a significantly cheaper and quicker way for couples to resolve financial and children issues.

The mediation process involves the couple working with a mediator, who encourages them  to come to a mutually acceptable solution.  The mediator is impartial and does not advise either client, but will give them information for example, how in his or her experience the court might deal with a particular issue, such as the duration of maintenance payments, or inherited wealth.

Mediation relating to finances

When dealing with a financial application,  a judge will have quite a wide discretion as to what settlement is appropriate in any given case.  This can make it very difficult to predict the outcome with potentially thousands of pounds being spent obtaining an order that no one may be happy with.

The mediation process can take into account the priorities of the couple, such as for example, one party wanting to remain living in the house, somebody wanting to retain their pension in full or whether a clean break settlement is in fact, the best solution.  It is arguably far easier for couples to live with a settlement into which they have had some input, rather than one that has been imposed by a judge.

The mediator will want both parties to provide financial disclosure, but the couple can decide when and for what period this is provided, whereas the court process is much more prescriptive in relation to what needs to be produced (such as the requirement to provide bank statements for a minimum of a year).

It is normally possible to have a first mediation appointment within a week of the mediator speaking to both clients.  By contrast, the first court hearing is normally 3 or 4 months after the court processes the initial application.

Mediation relating to children

With Children Act proceedings, if the case is being decided by a judge, he or she will want to know what is in the best interests of the child(ren) concerned.  This is often achieved by the court appointing a CAFCASS officer, who might visit the child(ren) and speak to each parent before preparing a report, in which they will make recommendations for future child(ren) arrangements.

With mediation, some mediators are qualified to see children, as part of the mediation process.  Having had an initial meeting with the parents, (who both have to agree to the mediator seeing the child(ren)), the mediator will then have a meeting with the child(ren) without the parents, although another adult will be present.  Having seen the child(ren), the mediator will report back to the parents on issues that have been specifically agreed with the child(ren).  If the child(ren) asks for some things not to be repeated to the parents the mediator must respect this.  The only exception to this confidentiality is if the child(ren) discloses he/she, or another child, is at risk of harm, in which case the appropriate referral is made, for example to social services.  This is explained to the child(ren) at the start of the process.

Children as young as four might be involved in the process. We find that children often appreciate having had the opportunity to talk about their wishes and feelings in a neutral environment without either parent being present.  It may enable them to discuss worries that they do not feel comfortable talking about in front of either parent, for example if one parent has a new relationship with someone the child likes and he/she is worried the other parent will react badly to this.

The mediator will make an effort to ensure that the meeting with a child(ren) takes place in a relaxed environment , including providing appropriate soft drinks  and snacks.  The child(ren) will also be given the opportunity to “doodle” or draw a picture to help them relax.  Most mediators will also write to the child(ren) in advance of the session (in a way that is age appropriate) inviting them to attend to speak with them.

It is important to emphasise that the child(ren) is (are) not being asked to decide what will happen, but told that mummy and daddy want to know what they feel about the current situation and any suggestions they may have with regard to childcare arrangements going forward.

The feedback from both children and parents who have been involved in mediations where the children have had direct involvement and the opportunity to discuss with the mediator is extremely positive.  A mediation can be concluded very quickly enabling the whole family to move on and hopefully to give parents the foundation to co-parent more successfully.

Where there are minor children, it is possible to apply for a £500 government funded voucher towards the cost of mediation. This has benefitted a number of families since the scheme was introduced, as explained in this article – More than 27,000 separating families have used the Family Mediation Voucher Scheme (familylaw.co.uk).

The mediation process is normally significantly quicker and cheaper than the traditional adversarial court process and it often improves, rather than damages, a couple’s relationship, hopefully making future financial and children arrangements easier to navigate and agree. Kirstie Law and Desmond O’Donnell from the Family team are both trained mediators, with Kirstie also being qualified to meet with children as part of the mediation process. Please contact Kirstie or Desmond should you wish to discuss mediation further.