International Day of Happiness - Happier Together?
Sahil Aggarwal | 20.03.2020
14.01.2020 Sarah French
What is mediation?
Mediation is a voluntary process whereby a separating couple sit around a table with an independent third party, the mediator, to help them discuss the division of their finances upon their separation or divorce, and the arrangements for their children if needed. If there are no finances which are relevant to talk about then mediation can exclusively be used to deal with the arrangements for the children. It is a very flexible process and can be used to discuss whatever the couple wish to use it for. It is not, though, therapy or couple counselling.
What are the advantages and disadvantages of mediation?
Mediation is often a lot quicker and more cost effective than resolving matters in more adversarial ways, for example court proceedings. The decisions are made by the couple and therefore both have much more control and say in the outcome. The needs of any children and wider family considerations can be prioritised. The disadvantages are that it is completely voluntary so if one person wants to mediate and the other does not there is nothing that person can do to make them, and the decisions made are not binding so it is possible for one person to change their mind at any time and other options would then need to be looked at as to how things can be resolved.
Is mediation compulsory?
No, mediation is completely voluntary. What is compulsory is to attend a Mediation Information and Assessment Meeting (MIAM) before making any application to the court for the court to deal with the financial matters alongside a divorce and/or any children matters. The court needs to be satisfied that anybody making an application to the court has met with a mediator to have explained to him or her the various different options as to how things can be resolved outside of court before making a court application. It is possible to skip the MIAM requirement in the event of certain exceptional circumstances, such as the need for an urgent hearing.
How long does mediation take?
Mediation is a bespoke process so it can take as long as the couple need it to take. Typically a mediation is concluded after three to four sessions, each lasting around 1½ hours. These sessions can take place over a period of weeks or months, depending on what suits the couple. Sometimes financial information can take a while to come through, such as pension valuations, but other than that the pace is determined by the couple.
Is the decision binding?
The outcome in mediation is not binding unless and until it is drafted into an order of the court for the judge to approve. Only when any agreement is put into a court order and approved by the judge does any decision become binding. It is very common, though, for the mediated agreements to be effectively converted into consent orders for the judge to approve upon mediation concluding without any issues.
What happens if mediation fails?
If the mediation breaks down for any reason then the couple will need to speak to their legal advisors about their other options, such as making an application to the court. The door is always open so the couple can return to mediation at a later stage if they both wish to do so. The only exception would be if the mediator has deemed mediation unsuitable.
How much does mediation cost?
Mediation fees vary depending on what needs to be discussed and how many sessions are needed. A typical mediation can be concluded much more cheaply than going to court or engaging in lengthy adversarial solicitor negotiations. Further information on costs is provided by our mediator once the couple have both met with her individually.
Can I bring someone to the mediation?
It is possible to bring a friend or family member to your individual initial appointments with the mediator when mediation is discussed with you and you decide, together with the mediator, whether mediation is suitable and something that you want to engage with. Thereafter, in the joint sessions, it is not possible to bring anybody else unless both partners agree and the mediator is also happy with this. Sometimes extra professional support is needed in the mediation process, such as a financial consultant to help assist with discussions about pensions and tax, and a family consultant to help assist manage the emotions and communication issues.