Q&A about family mediation
Break ups are stressful, especially if there are kids involved. It can be difficult to come to an arrangement where all parties are happy. Family mediation aims to make the process an easier and cheaper alternative than going to court.
We teamed up with The Ministry of Justice to answer some of your questions on family mediation.
The panel comprised of the Minister for Family Justice, the Rt Hon Simon Hughes MP; Glynne Davies, Family Mediator for more than ten years, and Robin ap Cynan who is a lawyer with more than 25 years' experience as a Family Mediator - both are Board Members of the Family Mediation Council.
Legal requirements | The cost | When mediation isn't suitable | Cases of domestic violence | Enforcement of agreements | Finding a mediator | Mediation for people with special needs | Changes to an agreement | Confidentiality | Listening to children in mediation | Making a fair decision
Q. Hopezibah: Is it a legal requirement to try mediation first or is it still optional?
Robin says: "Family mediation can help anyone to deal with the practical issues they wish to resolve following a relationship breakdown. The legal requirement applies to the person who wants to make the application, and although it does not apply directly to your ex-partner, there is an expectation that they should also attend a Mediation Information and Assessment Meeting (MIAM) to find out about mediation. The court will ask them to explain if they were invited to a MIAM and did not attend."
Glynne says: "If you want to apply to the court because you can't agree what the financial arrangements are regarding what percent of the assets you should have; what sort of spousal support there should be; how much time the children should spend with you; or what to do if your ex-partner wants to move with the children to the other end of the country… then you will need to attend a MIAM. There is no obligation for you to continue into mediation. Only MIAM attendance is compulsory at the present time."
Simon says: "What we're trying to achieve with family mediation is challenging and a big shift from the traditional route of going to court. We want couples to work collaboratively to sort things out after they separate or divorce and particularly for parents to make arrangements that are best for their children. We want them to do this in agreement with each other, with the help of mediation, and by coming to an agreement themselves to take on the commitment to see it through and not see the court as an automatic fall-back. There will of course be times when an agreement needs to be made legally binding, for example when there are complicated pension issues or large assets involved."
Q. collaborate: What new steps can be taken, other than publicity, to ensure more cases are referred to mediation?
A. This government is heavily promoting family mediation as a practical solution for couples as an alternative to going to family court. This is because it gives the couple more say about their future, is quicker and cheaper than a long drawn out battle, is less stressful, and is easier on children.
Q. Older: Why are the costs so high? How can you help people who'd like to use it but can't afford to?
A. The cost of mediation depends on where in the country the couple live. The mediator will explain what is covered by their fee. In some cases one or both may qualify for legal aid. Although not all mediators offer legally aided mediation, all Family Mediation Council (FMC) mediators can help with checking eligibility.
The government fixes the eligibility criteria for legal aid. Those with income greater than £2657 per month will not qualify. Those with disposable income under £733 per month will qualify provided the value of any capital they own does not exceed £8,000.
Clients in receipt of certain benefits will be passported through the income means test, so they will automatically qualify provided they also pass the capital means test.
The Family Mediation Council Code of Practice states that mediators must ensure that the participants agree the terms and conditions regulating the mediation before dealing with the substantive issues. This must be in the form of a written agreement which reflects the main principles of 6.10 Code. The agreement must also set out the client fees.
Glynne says: "I would encourage potential clients to shop around for a provider who they feel will meet their needs at a price they are willing to pay. As with everything, the cheapest isn't always the best, and it's better to pay for five meaningful sessions which result in a robust agreement than wasting money on two sessions that break down.
Clients can make a huge contribution to the efficiency of the sessions by making sure that they have gathered all of the information required for the next session.
To try to answer Older's question about why costs are 'so high', I think it's often difficult to see the value in a process that doesn't have a tangible end product. When you pay for a car, you get one that will hopefully last for several years; when you pay for mediation, you are buying a structured decision-making process that's invisible, but that too is intended to produce long-term solutions to the problems of family breakdown."
|Rt Hon Simon Hughes MP
Simon says: "Difficult decisions had to be made about where legal aid would apply. Family Mediation remains as one of the activities for which legal aid is available if the individuals qualify under the general legal aid financial rules. We believe that those who need it will therefore be able to access funding.
If a court application is contested, mediation will still be cheaper than representation for a drawn-out court case. We want people at least to take a proper look at what mediation might be able to do for them and in all cases for couples always to focus on the needs of their children and not how they feel about the other person."
Q. diamondsrock: Mediation is not recommended in circumstances where there is domestic abuse - but many women who are abused don't have much evidence of this, because they have been too scared to go to the police or because the abuse is emotional rather than physical. Will women be pressurised to undergo mediation when they have claimed there is domestic abuse where there is no corroborating evidence?
A. Where there is evidence of domestic violence the MIAM requirement does not apply and the person can self-exempt on their court application.
Even if you attend a MIAM with your ex partner, at every MIAM time is set aside to discuss and check with each party separately to establish if there are, of have been circumstances, where abuse has taken place (whether economic, emotional, physical, or psychological harm, coercive control, or otherwise) or matters of child protection, either of which may make mediation inappropriate.
Robin says: "Mediators will ask questions such as the following when they check out with parties whether or not mediation is suitable:
- Are you afraid of your ex?
- How possible would it be for you to be in the same room as your ex?
- Would you feel threatened or intimidated if you were?
- Would you be able to speak for yourself in the presence of your ex, and be able to say what you would like as regards your children or by way of a financial settlement?
- Are you prepared to try? Or would you prefer not to?
- What happens when your ex doesn't like what they hear?
No one has to mediate who does not want to mediate and no mediator will wish, or be prepared to, work with a party who is fearful or intimidated.
Sometimes where someone would like to mediate but is concerned about real or perceived safety, mediation can include additional safeguards such as: separate waiting rooms; staggered arrival and departure times; two mediators working together in co-mediation.
However, it is always the person's choice whether any or all of this will allow them to feel safe enough to mediate, or whether they would prefer not to do so."
Glynne says: "The short answer to diamondsrock's question is: 'Absolutely not'. Mediators should never pressurise unwilling clients into mediation. We do not require corroborative evidence of abuse, or even a reason that we think is justifiable. Where mediation is concerned, no means no. I appreciate that it is very hard to open up to a stranger in a 45-minute meeting, but I would urge clients to be honest about the extent of any abuse. Mediation helps us to make a sound decision about the suitability of mediation, and in the long run helps both parties access a resolution process that is best for them. Hiding any abuse just results in a miserable mediation experience for everyone.
Shuttle mediation is where mediators offer each party separate sessions on their own with the mediator. This may be as well as, or in addition to, joint sessions. Where one party insists on shuttle mediation with no joint sessions this could be indicative of an irremediable power imbalance or other reason why mediation is probably unsuitable. The starting point should be: is this case suitable for mediation - and if so can shuttle assist? It should not be, shall we give it a try anyway?"
Glynne refers to 5.2, 5.78 of the Family Mediation Council Code of Practice.
Q. Thewomaninwhite: Are there particular circumstances in which mediation is not appropriate - other than domestic violence cases? If so, what are these - and what would happen in those cases?
A. Robin says: "There are exemptions to the MIAM requirement such as domestic violence and child safeguarding issues. The court simply wants to know that you have at least looked at mediation as an option, or that there are reasons why it is not suitable. Some disputes cannot be resolved using mediation – this is what the MIAM is for: to give information and assess suitability.
Mediation might not be right for you, where, for example:
- there is a paternity issue: this can't be negotiated;
- where a party is bankrupt and they can't negotiate their own divorce settlement;
- if there are attitudes and issues which make mediation inappropriate, for example:
I don't want my son to see his dad;
I am not prepared to tell you what my pension is worth;
I am not prepared to pay for mediation;
I'm just not prepared to do it and you can't make me.
- if there are emotional situations which mean mediation is unlikely to work, eg:
one party is not prepared to stick with commitments and plans made in mediation;
a party is not prepared (or finds themselves unable) to trust the other;
one party is fearful or afraid of the other."
Glynne says: "Although mediators will always try to offer mediation where appropriate, there are inevitably going to be situations where mediation is unsuitable, and these all share the same common characteristic: namely that mediation will risk making the situation worse, either by increasing the conflict or by protracting the dispute. These include:
- a disagreement about the agenda (eg one parent wants to exclude talking money; the other wants to exclude talking about the children)
- third party interest (such as bankruptcy, where the decisions are not wholly in the hands of the parties to the mediation)
- third-party involvement (such as social service or CAFCASS involvement, restrictive bail conditions/injunctions that prevent the parties being in the same room)
- a skewed power balance that means one party will always be at a disadvantage
- intransigence (eg one fixed proposal/ultimatum and an unwillingness to consider anything else)
- coercion (eg support payments/contact being withheld unless mediation goes ahead)
I can't stress enough the importance of a thorough information meeting to try to identify any potential issues and avoid entering into a process that isn't right or helpful."
Q. Chancer2014: Who calls it a day when mediation doesn't appear to be working? How long can these communications issues go on for? There must be times when one party thinks it's hopeless yet is encouraged to continue. Who decides when mediation isn't working and what are the criteria for defining this?
A. It is a principle of mediation that it is voluntary both for the people involved and for the mediator/s. So, either party can pull the plug at any time. But so can the mediator.
|Robin ap Cynan
Robin says: "I will call it a day where I consider that mediation simply isn't working, has got as far as it can, or risks making things worse if it carries on any further. Whenever I do this (and it isn't often) I will always explain my reason/s for doing so to the couple who are working with me in the room."
Glynne says: "Often it's no-one's fault when mediation breaks down; it can simply be that the timing is wrong, and the emotions are running too high for rational negotiation. Where one party decides to end mediation, the mediator will check to see if there's anything that could be done differently that would allow that person to remain in the process, but no-one should feel under any pressure to stay.
I think it's one of the hardest decisions for a mediator to end mediation where both parties want to continue, because we're hard-wired to want to help, but where mediation is unfair or ineffective, we are under a duty to end it."
Glynne states 5.2 of the Code of Practice.
Q. InAndOfMyself: How legally enforceable are agreements reached in mediation? Eg: the ex-spouse is to receive a specific sum from sale of house from resident parent after youngest child finishes high school. If the resident parent doesn't want to sell the matrimonial home can the ex-spouse enforce the mediation agreement?
Robin says: "Usually, this is 'translating' the result of mediation into a court order by consent. Unless there are problems this tends to be a paper-based exercise, subject to the approval of a judge or magistrates, who, if they are in any way uneasy with the proposed order, can invite the parties to come to court to explain their proposed order - and their reasons for seeking it.
This is particularly true if the order is about children arrangements. The court will always apply the welfare checklist and the children's welfare needs will be the priority and not the parents' wishes.
Mediators also always suggest to people in mediation that they each take individual legal advice on the proposed settlement before making it legally binding in this way. Some people do, some people don't. Sometimes one will, and the other will not, but the mediator will always recommend that they do so wherever possible."
Glynne says: "This is worded slightly more strongly at 6.15 of the Code of Practice. There are court fees associated with obtaining such a consent order, which are less than for people applying to court to decide matters for them.
If someone qualifies for legal aid, then they will also get legal help with mediation. Once decisions made in mediation have been embodied in a consent order, the usual range of court enforcement options are available, just as if the mediation outcomes had been decided upon by a judge or magistrates following adjudication."
Q. Alchemist: Can you explain the process whereby both parties reach agreement through mediation on the financial arrangement to be put in place after a divorce?
A. Glynne says: "At the MIAM the mediator will focus on any party's expressed concerns and base any decision about whether to offer mediation on the nature of the concerns and whether these can be addressed. Every set of clients who go through financial mediation will be aware of their own particular 'sticking points'. For some it is the family home that they are desperate to cling onto when everything else around them is changing; for others it is a redundancy payment that represented a difficult time in their lives.
The mediation process allows people space and time to listen to each other's point of view, and an opportunity to see things through the other person's eyes. The fact that conversations are legally privileged and without prejudice allows people to discuss the unthinkable options without commitment, and this often opens up other possibilities that seemed impossible at the beginning of the process."
Q. Lasvegas: How do you find a family mediator? Is there a professional body ie RICS for surveyors?
Q. WowGrowingUpSoQuickly: What qualifications and experience do mediators have?
A. Family Mediation has been offered in the UK since the 1970s. Mediators come from a range of backgrounds such as law and social services. Most mediators are affiliated to a Member Organisation of the Family Mediation Council (FMC) and work to its Code of Practice. They will have been trained and accredited to carry out MIAMs and mediation. Mediators who have a legal aid contract must also show they have reached a particular higher standard.
Specialist training is also required if mediators see children which is in less than 5% of present cases - but this is changing. A new Professional Standards Framework has just been launched and an independent Family Mediation Standards Board will oversee the accreditation and registration process and review and approve training courses.
Q. HangingInAGruffaloStance: How are mediators supported/trained/qualified to accommodate people with communication, behavioural or psychological difficulties which may impact on interactions?
Glynne says: "It's uncommon to have third parties in the room, and in many cases it would be inappropriate. The overriding objective is to make the mediation room into a level-playing field and not to 'lawyer-up' or arm-one party to the detriment of the other. Additional adaptations can be made as appropriate, for example, shortening the length of the sessions if someone has problems concentrating or sitting for long periods.'
Glynne states 6.18 of the Code of Practice.
Q. Theimpossiblegirl: What happens if the circumstances of either party change enough to have an impact on any agreement reached?
A. It is to be expected that things are likely to change in people's lives especially if there are children involved. A mediated agreement can be amended with further discussion to reflect everyone's needs.
Depending on whether or not your agreement was a Memorandum of Understanding or a more formal consent order you will need to decide how to modify the settled outcome. This could be:
- informally (eg around the kitchen table)
- returning to mediation
- working with lawyers
- going to court to vary any order
However, if you cannot agree the process, or if one person is not prepared to consider any modification to the outcome given significantly changed circumstances, the matter may have to be brought to court, especially since sometimes, following a court order in a finance and property mediation, there may be no legal basis for changing the outcome.
Q. Maiyakat: What happens if one of the parties does not stick to the agreement? Can you return to mediation or would you then need to go through the courts?
As this process continues there can be a wobble in the arrangements, but bringing the next mediation session forwards to look at the reason for the wobble is usually very successful in helping parents get back on track with their arrangements for their children.
Although parents can go to court to turn their children arrangements into a court order by consent if they wish, I would say this is something asked for by under 10% of the parents with whom I work.
Effective mediation of children matters means that court intervention is rarely required."
Q. Meglet: Why is mediation confidential and why are no records kept?
My abusive ex became angry during mediation and was eventually asked to leave by the mediator and the session stopped. A record of this would help support me if he ever showed up again and tried to gain access to the children. But I was told nothing could be made public so even though his behaviour was witnessed by another person there is no evidence that can back me up. It is yet another situation where victims of domestic abuse are overlooked.
A. Robin says: "Mediation is confidential to the people involved and to the mediator/s and is therefore a private process, but subject to certain exceptions where mediators will break confidentiality:
- risk/occurrence of harm/significant harm to any child or to any adult
- disclosure of a planned or likely future serious criminal offence
- disclosure of circumstances amounting to a financial crime under the Proceeds of Crime Act 2002 (eg money laundering, terrorism, tax evasion, benefits fraud, drug dealing, gun running)
- matters of data protection
- court order"
Glynne says: "Financial information disclosed in mediation concerning financial issues is confidential to the parties, but can and is routinely shared with parties' legal advisers and is available for use at court.
To answer Meglet's question, mediation is confidential to allow people the freedom to talk without worrying that the other person is gathering evidence that can be used against them. Unless someone's behaviour becomes so bad that the mediator is concerned for the safety of the other person or for a child of the family, then that confidentiality will be protected. It sounds as if the session went on a bit too long from Meglet's point of view, but it's reassuring to hear that the mediator did terminate the mediation."
Robin says: "It would have been a matter between Meglet and her mediator as to whether the circumstances of her ex becoming angry in mediation were at such a level that confidentiality should be broken.
Good practice requires mediators to keep written records of all mediation sessions, but these are very far from being verbatim notes, rather, they are notes of positions taken, offers made, and decisions arrived at during the session, and also of homework tasks to be carried out following the meetings."
Q. ataraxia: Can older children have a voice in the mediation process?
A. Simon says: "I am deeply committed to improving the position in mediation and in family court proceedings to make sure that children and young people are given the opportunity to be heard in decisions that will change their lives. This does not mean that all children will get what they want but it should mean that at least they have age appropriate information about what is happening and that they have the chance to say what they think if they want to. I have set up an advisory group and an expert forum to look into how we might achieve this in mediation."
Glynne says: "The voice of the child in mediation is currently being reviewed with a view to encouraging more children to be heard where it is safe and appropriate for them to make their concerns, wishes and feelings known. Roughly a third of the mediators on the FMC databse are already qualified for voice of the child. The FMC Code of Practice deals with this issue in more detail at section 5.7.
Mediators who consult with children/young people have undergone specialist training in order to do this very important, but highly sensitive, area of work. If you think that this might be a helpful element for your mediation, it's worth seeking out a mediator or practice where this service is offered. You will be able to find one on the Family Mediation Council website.
Family mediation positively puts the needs of children at the heart of the discussions and encourages parents to put their children first. Family mediation is unique to each couple and so it is up to them how they consider their children."
Q. Bobs123: If mediators cannot give advice how can you know you are getting a fair settlement? It appears the only way to ensure is when both sides also have a solicitor to defer to after every meeting. This of course adds substantially to the costs and while the mediator is trying to facilitate an agreement, the solicitors appear to have their own agenda.
A. Glynne says: "Successful negotiation in mediation also relies on the clients having an understanding of what the court would consider fair, having regard to all of the circumstances, not least people's needs moving forward. The court has a wide discretion; what might be considered fair by one family in one set of circumstances would not be considered fair by another family whose circumstances are different, and yet both settlements would be ratified by the court. The mediator will provide general information about what the court would take into consideration, and while we can't give you advice, we can (as indicated in a previous answer) inform you if we think the route you are taking is unlikely to meet with the court's approval."
Robin says: "To answer the point about solicitor advice during mediation: clients are free to consult their solicitor after every mediation session should they wish, but as Bobs123 implies, this is an expensive option. Used wisely and well, targeted legal advice taken when necessary at particular stages of the mediation process is worth its weight in gold. At the very least I would encourage clients to take some initial general legal advice on the process, and then return to their solicitor with their documents and proposals for settlement before finalising their decisions.
It's also worth mentioning that for clients on legal aid, there is a package called 'help with mediation', which allows for some limited legal advice from a solicitor to clients using mediation.'
Q. Sanfairyanne: What evidence is there about settlements received via mediation – versus those received via judge/solicitors? Essentially, do women come away with less money?
A. Glynne says: "I'm afraid I don't have any official statistics on the question. One of the problems is that there is no grid system that defines what someone will get if they go to court, and so it's very difficult to know whether they would have got more. The only thing I can say is that mediators will encourage all parties to take targeted legal/financial advice as outlined in the previous question. Your solicitor is under a duty to protect you, and therefore would indicate if he/she feels that you are being disadvantaged by the proposed settlement.'
Robin says: "There is no mathematical formula to predict the appropriate answer for each individual case, although some suggest that this would be better than the discretionary system applicable to financial settlements on divorce.
Because every case is different, I suspect that even if detailed research was carried out into a large number of cases, spotting very similar cases and trying to compare their results would be an almost impossible task. The results of such research comparing similar cases arriving at consent orders via different routes would be fascinating. However, the nuances of individual cases linked with the limited nature of the financial data suggests that such research whilst interesting would lack statistical resilience.'
Simon says: "Research on mediation is not extensive and we know we have knowledge gaps in relation to privately funded mediation.
The average legal aid cost of resolving property and finance disputes following a relationship breakdown separation is approximately £500 through mediation for a publicly funded client, compared to £4,000 for issued settled through the courts. The average time for a mediated case is 110 days compared to 435 days for non-mediated cases. Approximately 7 out of 10 couples reach an agreement; but we do not have the kind of detail to make any gender comparison in the type, or value, of the agreements reached.'
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