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What is Family Mediation?

25 Oct 2018

What is Family Mediation?

Family mediation is a process where families undergoing changes, usually arising from the ending of a relationship, meet together with an impartial third person (the mediator) to assist them to have informed discussions with the aim of the parties reaching an agreement which each and both of them can live with.

Mediator impartiality.

Mediators act impartially during the mediation process, with fairness and even-handedness towards each party.  For this reason the mediator cannot give legal advice, but they provide legal information to the parties to inform their discussions.

Parties reach their own agreements and the mediator has no authority to determine the issues.

The mediator manages the process so that the parties make their own informed decisions. The mediator encourages the clients to think about a range of options and discuss those options, but the mediator does not express an opinion as to which option they think is best. The mediator does however tell the parties if they think that the agreement they have reached is not an agreement that a court would approve, and make legally binding.

In mediation as the parties formulate their own agreement, it is far more likely to work, than a decision imposed upon them, for example, by a court.  No third party knows the children or the financial circumstances better than the parties themselves, so they should be in control of making decisions, with guidance from the mediator.

Voluntary

Mediation is a voluntary process and all parties must wish to attempt to reach agreement via the process. If any party wishes to pause or stop the mediation at any time, their wishes will be observed. The mediator can also choose to suspend or end the mediation if they believe it appropriate to do so. This may be because they feel that one party is feeling unduly pressurised by the other.

The mediator creates a secure environment where both parties feel safe in the process and there is no fear or threat of violence or harm. The mediator will try to ensure that no controlling, bullying, intimidating, threatening or manipulative behaviour takes place.

Independent legal advice

As the mediator is impartial, the parties are encouraged to obtain independent legal advice on the various issues that are being discussed. This is so the parties  have a better understanding of how family law applies to their individual situation so that they are better informed, and have more confidence, when discussing various matters in mediation.

Confidentiality and privacy

Mediation is a confidential process and the mediator will not disclose any information to a third party which is obtained during the process unless the mediator believes that:-

  • a child has suffered or is at risk of suffering significant harm;
  • an adult has suffered or is at risk of suffering harm due to an abusive relationship or because of lack of mental capacity; or
  • they have become aware of information that they are duty bound to report in connection with money laundering legislation or criminal activity.

Factual information regarding financial issues is however provided on an open basis so that it can be disclosed to independent legal advisers and, once an agreement has been reached, can be used by lawyers to prepare an agreement to be sent to the court to become legally binding.

However beyond the reasons set out above, mediation is confidential, so when discussing options, anything said cannot be relied upon in any later legal proceedings. This gives the parties confidence to freely discuss various options, which is more likely to lead to an agreement suitable to each and both of them.

Welfare of children

The mediator will have regard to the welfare of any children of the family and encourage the parties to consider the needs, interests, wishes and feelings of the children, as well as their own. The children are innocents in the family situation and can suffer significant emotional harm if they are subjected to parental conflict. Although parties may have many differences between them, the vast majority agree that minimising emotional harm to their children should be a priority.

Summary of Advantages

The mediator will always encourage parties to put the welfare of their children first.

The mediator is there to create a safe environment for confidential discussions to take place.

The mediator guides the process and encourages the parties to think about possible options.

The mediator provides legal information to assist the parties.

The parties make their own decisions – no one knows your family better than you do!

The parties are free to take independent legal advice whenever they wish to.

Agreements made by the parties (rather than third parties) are more likely to work and stand the test of time.

Mediation is likely to be the cheapest service involving a family law professional, as the cost of the one mediator is split 50/50 between the parties, rather than both parties each paying for a lawyer.

For more information on any of the above, or how we can help your business, please contact Nicola Matthews, or call 0191 232 8345.