Mediation in family law is a voluntary and confidential form of Alternative Dispute Resolution (ADR). Mediation is used to help resolve disputes between separating couples involving issues such as financial matters and child arrangements without issuing court proceedings.
One of the key reasons for engaging with mediation is that mediation has the potential to provide the means to resolve legal disputes cost effectively and quickly; avoiding the need for costly and potentially lengthy court proceedings.
In a number of recent cases judges have encouraged parties to proceedings to engage with ADR and have gone as far as to penalize in costs should the parties fail to do so. In the case WL v HL [2021] EWFC, the court used its powers to encourage parties into ADR, which resulted in an agreement being reached between the parties concerning the child. This was beneficial because the cost of proceedings was disproportionate to the issues.
Additional to the costs of the court process, the time it takes to get a case through the courts can be lengthy. In March 2021, the Ministry of Justice introduced an incentive scheme called "Family Mediation Voucher Scheme". This scheme offers £500 towards the costs of mediation in eligible cases, further encouraging parties to utilize mediation as a starting point in family disputes.
Most recently in March 2023, the Lord Chancellor and Justice Secretary Dominic Raab revealed the Ministry of Justice would consider 'cost shifting of fees' to ensure certain family law cases are settled by mediation and not court. This further incentivizes the use of mediation as a method to resolve family disputes since resolving before court intervention keeps costs and wait times to a minimum.
McFarlane P, in his speech at the Family Mediation Association Conference in September 2022, stated that, 'mediation must be the norm rather than litigation in family disputes'. Accordingly, some changes to the Family Procedure Rules will be forthcoming in 2023. For example, in private children cases, the Family Procedure Rules will expressly provide for the court to adjourn proceedings if it is evident the case would benefit from attempting ADR such as mediation.
1. Understand the process:
Mediation is a without prejudice process where discussions or any offers made during the mediation process cannot be used in court if the case results in litigation. Mediation usually takes place in a less formal setting in comparison to a court room. If an agreement is reached during mediation, it can be sent to the court to be made legally binding should both parties agree. If both parties agree and wish for the agreement to be legally binding, the mediator will most likely request both parties seek legal advice on this.
2. Gather the relevant information:
Failing to prepare, is preparing to fail. Compile all the relevant documents that would help the mediation discussions. These documents could comprise of financial statements, child-related documents, records of communication between the parties and any relevant agreements or court orders..
3. Focus on active listening:
Mediation is a beneficial form of ADR because it promotes active listening. Active listening involves understanding what the other party is saying and reflecting on it. In situations of high emotional stress, it is common to be a conditional listener without realizing since we are attuned to hear what we want or expect to hear, rather than fully reflecting on what the other party is saying. This is where the role of the mediator is integral; having a third party to assist with seeing all aspects of a situation is beneficial to both parties. It is important to consider the underlying interests and reasons behind preferences of either party, this will aid understanding and ensure the best possible outcome.
4. Practice effective communication:
Aside from actively listening, it is beneficial to use the correct tone and language to convey a point or issue effectively. Mediators help parties to 'hear'. This means that the mediator will assist either party to not only convey their own viewpoint, but to really hear the other side's view point. This is particularly prominent in situations of conflict or heightened tension, when as individuals we can go into the fight or flight responses. Attending the mediation sessions fully prepared with the right mindset will be beneficial to both parties.
5. Seek legal advice:
It is advised that individuals should seek legal representation to fully discuss expectation and objectives for mediation. Aside from legal advice, it is also beneficial to seek other expert advice from professionals such as pension experts, occupational health experts or financial advisers if necessary.
It is important to remember that the mediator is the neutral party and will not provide legal advice. Therefore, it is beneficial that either party seek independent legal advice throughout the mediation.