What is mediation in divorce?

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An increasing number of couples are using mediation to sort out things like the finances and parenting after divorce. How does mediation work and what’s involved?

What is mediation?
What mediation is not designed to do is to stop couples who want to divorce from splitting up. Instead it will concentrate on helping you and your husband/wife or civil partner agree how you divorce or dissolve your civil partnership through face-to-face meetings.

SAVVY TIP: Mediators cannot give you specific legal advice, so it’s often a good idea to see a solicitor as well as having mediation. You can see a solicitor before you have mediation, to get some advice about your rights or you can see one alongside your mediation.

1. You and your ex have a series of meetings, together with the mediator. The mediator is there to try and make sure that the meetings are constructive and to help you and your ex to reach an agreement on things like the finances or where the children spend their time.

2. The mediator is an impartial third party. The mediator may be someone with a legal background or it could be someone from a counselling type of background. Whatever their background, they are not there to take sides but to facilitate the meeting(s).

SAVVY TIP: Many family (divorce) lawyers are also trained mediators. However, once a solicitor has given you legal advice, they will not be able to mediate for you because of the potential conflict of interest. They would have to refer you to another mediator if you decide that mediation is for you.

3. You will normally have several meetings. There will usually be an initial meeting or phone conversation with you separately. This is to check that you are both happy to do the mediation. Once the mediator is happy then you will have three or more face-to-face meetings with the mediator and your ex.

SAVVY TIP: While the mediator can provide legal information, he or she won’t give you tailored legal advice. The idea is that you and your husband/civil partner can get the facts out in the open so that the mediator can try and help you discuss the financial arrangements (or whatever you need to talk about) and move the discussion towards an agreement.

What happens after mediation?
If you’ve reached an agreement, you’re given a document (it’s called a ‘memorandum of understanding’). This sets out what you’ve agreed, but it’s not a legally enforceable agreement. To make it legally enforceable, you’ll have to take it to a solicitor.

Can everything be decided by mediation?
No, not everything. If there are complex decisions to be made – such as dividing the pension – that couldn’t generally be done through mediation.

Who does mediation work for?
The key to getting mediation to work is the quality and abilities of the mediator rather than the dynamics of the couple who are divorcing.

Mediation can work for many couples. As long as you can be fairly certain that you won’t end up agreeing to something because you’re too scared not to, mediation can work.

SAVVY TIP: Sometimes two mediators will be used rather than one and some believe it’s a much better approach. It means one can keep a record of what’s said while the other is able to focus on the session itself. In this situation, one mediator would normally be a lawyer; the other might have a counselling background.

Mediation isn’t for everyone. Mediation is not appropriate if there’s been domestic violence or a history of intimidation in the relationship.

SAVVY TIP: I’ve spoken to divorcing couples who have had good experience with mediation and others who have not. A good mediator shouldn’t let one person set the agenda and dominate the session, but mediation won’t work unless both parties want to try it as a way of sorting out issues such as access to children or finance.

What will mediation cost?
The amount you pay for mediation will depend on the number of sessions you have; most couples would have at least four sessions before they are able to reach an agreement. Mediation typically costs from £75 to £150 an hour and you’ll probably need at least three sessions.

SAVVY TIP: Mediation is much cheaper than going to court and can be less expensive than divorcing using traditional family law. However, it may not be any cheaper than the most straightforward divorce. What’s harder to put a price on is the fact that disagreements and acrimony are often dealt with more efficiently through mediation.

Mediation and the law
If you’re getting divorced or dissolving your civil partnership in England or Wales, you have to have a mediation information and assessment meeting (called a MIAM) before you’re able to go to court. You can find out more information about mediation information and assessment meetings on the National Family Mediation website.

In England and Wales, couples who are divorcing or dissolving their civil partnership can no longer get Legal Aid to help with their legal fees. They can only get Legal Aid to help with the costs of mediation, unless there’s evidence of domestic violence or child abduction.

SAVVY TIP: In Scotland and Northern Ireland, Legal Aid is still available to pay legal fees in divorce and dissolution of a civil partnership.

How to find mediator
There are several organisations that represent mediators. In England and Wales a good starting point is The Family Mediation Council, the Family Mediators’ Association or National Family Mediation.

In Scotland: Scottish Mediation has information about mediators.

In Northern Ireland: National Family Mediation Northern Ireland has information on mediators and you can search by area.

Related articles:

Understanding the basics of collaborative family law

What to look for when hiring a divorce lawyer

Can ex wives (and husbands) ask for money years after divorce?

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