The role of mediation in resolving high-value family law disputes
There are few things more stressful, traumatic and potentially damaging than a family law dispute or a divorce. There are some lucky couples who can amicably agree to go their separate ways and even remain firm friends in the process. However, and particularly where there are high-value family assets, the divorce settlement often has to go through the ruinous and gruelling process of litigation in the courts.
Fortunately, in recent years, a kinder and gentler alternative has emerged: mediation.
What is “mediation”?
Mediation is one branch of what is known as “ADR” or Alternative Dispute Resolution.
The process is conducted by a professionally trained and experienced mediator whose job is to steer the parties towards the goal of reaching a settlement which can then be codified into a binding agreement. It is important to understand that mediation in divorce cases is not a contentious or adversarial process. There are no winners or losers in mediation. A mediator is not a judge and certainly not a jury. The mediator will not come down on any side nor determine who is in the right or who is in the wrong.
Instead, the purpose of family mediation is to help couples to resolve disputes, which usually centre around finances and children, and come to some manner of agreement in a cost-effective and efficient way while avoiding acrimony and recrimination.
How does mediation in divorce matters work?
The first step is when a mediator meets with each party individually and gives that party an opportunity to explain their point of view and their concerns without their ex-spouse present. The mediator can also ascertain what that party hopes to achieve from the process. This is known as the Mediation Information and Assessment Meeting (MIAM).
These early-stage meetings help the mediator to reach some manner of rapport and also establish whether they are the appropriate mediator for this particular case. If these initial meetings are successful and all parties agree to move forward, then further joint sessions will be arranged. These can be face-to-face, online or separately, with the mediator shuttling between the parties.
A skilled mediator will encourage open and honest conversations and also ensure that everyone is afforded the opportunity to speak, to be heard and to set the agenda. The aim is to reach a point where both parties have a settlement which, while it may not give everyone everything that they want, it provides a solution that all parties can live with.
The benefits of mediation
Confidentiality. All mediation discussions are conducted on a “without prejudice” basis and that means the contents of those conversations cannot be disclosed in any court. This is extremely important in the event that the mediation is not successful. Therefore, the parties can feel free to be candid and entirely open without fear of their words coming back to haunt them.
Flexibility. Multiple issues can be addressed during the mediation process, whereas, in litigation, several separate applications may be required.
Cost. It is not unheard of for warring couples to substantially exhaust their respective assets fighting a protracted legal battle through the courts. While mediation is generally not free, it is likely to cost a fraction of the cost of going through the courts.
Neutrality. The mediator will always be disinterested and objective. His or her job is to facilitate the discussions, help the parties explore all the options and also suggest other sources of professional help, such as therapy, if appropriate. Most people desire an amicable process, and a neutral mediator who does not take sides makes this far more likely.
Accountability. The final decision in all matters rests with the parties themselves. As stated above, a mediator does not act as a judge and does not hand down decisions. Because the parties have made their own decisions, they are more likely to stand by the terms of a final agreement.
Is mediation in family cases always the answer?
While mediation has much to commend it, it is not always going to be appropriate. There are cases where a mediator will decline to act and the parties will have to find some other method of working out their issues.
Examples of problems that are beyond the scope of mediation are
- where there is evidence of domestic abuse;
- a substantial power imbalance between the parties; or
- significant child welfare issues.
Evidence of these problems will generally arise during the MIAM.
If you are going through a divorce or a family split and you would like to try to resolve this by means of mediation then the first stwp is to seek advice from an experienced family lawyer. Your lawyer can advise you on the steps to take and often recommend a mediator who is experienced in dealing with mediation in family and matrimonial disputes.
For further information and trusted legal advice regarding matters of divorce, get in touch with our Resolution-accredited divorce lawyers in London at Carlsons Solicitors.