Form 5.3
FURTHER DETAILS ABOUT FAMILY MEDIATION
Avoiding the hostility trap
What is Family Mediation?
You may never have experienced divorce or separation yourself before, but you’ll
almost certainly know others who have. So you’ll have seen the way they bring out the
worst in people. People who once thought the world of each other are reduced to
bitterness, vindictiveness and sometimes sheer bloody-mindedness.
Such feelings are perfectly human, perfectly understandable. Unfortunately, the
traditional means of settling divorces and separations simply intensifies them. You hire
a solicitor. Your partner hires a different one. Each solicitor is duty bound to get as
large a slice of the matrimonial pie for his client as possible, a process which soon
acquires a momentum of its own and which frequently ends in a courtroom battle. One
partner is pitched against the other. Direct communication between the couple stops,
everything is done impersonally through the solicitor, and everything seems to take
ages. The legal bills keep rolling in, the children are confused and unhappy, the parents
just plain unhappy.
Increasingly, couples are turning to mediation as a way out of this ‘hostility trap’.
Mediation works by replacing the two separate solicitor advocates with one solicitor
mediator whose fees are paid by both partners, thus ensuring that he or she is
completely neutral. The couple and the mediator sit down together and try to work out
a Memorandum of Understanding which covers all the things normally laid down in a
court ruling: possession of the matrimonial home and assets, financial support, where
the children will live, how they spend time with each parent, and so on.
You don’t have to be on the best of terms with your partner for this process to work, but
you do at least need to be able to communicate. Even then, mediation can be hard
work, but because it puts you in face-to-face contact with your partner on neutral
ground, it is usually far more productive than traditional methods of settlement. This
means it is both faster and cheaper.
Everything that is discussed between the couple and the mediator is confidential. He or
she is barred absolutely from relaying any information to anyone else unless both of you
agree, and meetings with the mediator usually take place with both of you in the same
room.
When Can Mediation Be Used?
Even if you are not getting divorced, mediation can still be of value. Perhaps you have
religious beliefs which make divorce unacceptable to you. Perhaps you simply don’t
feel ready or willing to divorce but need to live apart and wish to formalise the
arrangement. Perhaps you aren’t married. Mediation will still be able to help you reach
agreement even if there are no children involved.
If a legal separation is the appropriate arrangement, then mediation can help you
achieve it.
Throughout this booklet, the word ‘divorce’ should be taken as a shorthand for family
breakdown, whether married or not, and whether divorcing or separating.
Will Mediation Work for Me?
It is important to understand that mediation is not a miracle cure for all matrimonial ills.
Some situations simply do not lend themselves to a mediated settlement. Here are the
principal roadblocks to such an arrangement.
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Chance of reconciliation. If there is any hope of you getting back together – and
that’s what you want – you don’t need a divorce, mediated or otherwise, you
need marriage guidance or a reconciliation service.
Physical abuse. If you’ve been physically abusive to your partner, or have been
on the receiving end of such treatment, face-to-face negotiation is still possible,
but mediation may not be suitable. The mediator will help you decide.
Financial secrets. If you have been less than honest with your partner about
financial matters, this is obviously a disadvantage. However, it is not
necessarily insuperable. What is vital is that you are prepared to be open from
now on. Mediation involves straight talking and straight dealing.
Mental health. If you or your partner have any mental illness or other incapacity
which makes it impossible for you to look after your own interests in the
negotiations, mediation will not be suitable.
Unwillingness to co-operate. If you or your partner are unwilling to go the
mediation route, the other has no choice but to accept the fact and take the
traditional court-based route.
If any of the above apply to you, you may have to forget mediation and pursue a
settlement in the traditional way. Unless of course there’s a chance of getting back
together, in which case the mediator can put you in touch with appropriate counsellors.
Mediation is a mutual process: for it to start, you must both agree to give it a try (even
if you agree on nothing else at that point!) and you must both accept equal responsibility
for its success or failure. For this reason it works best between couples who have stayed
in contact despite the break-up of the relationship. If you are unsure of your partner’s
views and feel unable or unwilling to ask, the omens are still good; because mediation
can help you discover each other’s views. In this situation there is nothing to stop you
suggesting mediation in writing via your partner’s and/or your solicitor.
Assuming none of these problems afflict you, try completing this questionnaire – in
private, just for your own guidance. Do your utmost to answer truthfully and
objectively – remember no one else is going to see it and there’s no sense in deceiving
yourself. The results will indicate whether mediation is likely to work for you.
Basics
1
Would you like to achieve a fair settlement as cheaply as possible?
Yes …………… Maybe …………… No ……………
2
Would you like to achieve a fair settlement as quickly as possible?
Yes …………… Maybe …………… No ……………
3
Would you prefer not to pay large legal bills from joint assets?
Yes …………… Maybe …………… No ……………
4
Could you stand being in the same room as your partner for an hour and a
half if a neutral third person is also present?
Yes …………… Maybe …………… No ……………
Income and assets
5
Do you believe your partner has been honest about them in the past?
Yes …………… Maybe …………… No ……………
6
Will he or she be honest about them now?
Yes …………… Maybe …………… No ……………
7
Have you been honest about them in the past?
Yes …………… Maybe …………… No ……………
8
Are you willing to be honest about them now?
Yes …………… Maybe …………… No ……………
Practicalities
9
Are you willing to work on budget forms (with help if needed)?
Yes …………… Maybe …………… No ……………
10
Are you willing to do legwork, such as obtaining your account and credit
balances?
Yes …………… Maybe …………… No ……………
Empathy with legal processes
11
Would your partner react negatively to legal techniques, such as being
served with a summons?
Yes …………… Maybe …………… No ……………
12
Would you?
Yes …………… Maybe …………… No ……………
13
Do you think you would end up with a better result through mediation than
through the traditional adversarial approach?
Yes …………… Maybe …………… No ……………
14
Do you think you would end up with similar financial support arrangements?
Yes …………… Maybe …………… No ……………
Privacy
15
Would you prefer to have your negotiations handled in a private room rather
than a public court?
Yes …………… Maybe …………… No ……………
16
Would you prefer not to have to testify in court?
Yes …………… Maybe …………… No ……………
17
Would you like to see all the details of the settlement before everything is
finalised rather than after?
Yes …………… Maybe …………… No ……………
18
Would you prefer to negotiate together with a neutral mediator rather than
have two law firms fight over your assets?
Yes …………… Maybe …………… No ……………
Children
19
Is your children’s happiness and security one of your priorities?
Yes …………… Maybe …………… No ……………
20
Rather than have the courts impose residence and contact arrangements,
would you prefer to arrange your own?
Yes …………… Maybe …………… No ……………
21
If you have any significant problems with your children, are you willing to
disclose and discuss them?
Yes …………… Maybe …………… No ……………
22
Are you anxious to keep your children out of a ‘tug of love’ dilemma?
Yes …………… Maybe …………… No ……………
23
Is it important to you that your children suffer as little as possible during the
settlement process?
Yes …………… Maybe …………… No ……………
Trust
24
25
If you reach a fair settlement, do you believe your partner will honour it?
Yes …………… Maybe …………… No ……………
Will you?
Yes …………… Maybe …………… No ……………
Add up your score, giving yourself 3 points for each ‘Yes’, 2 for each ‘Maybe’ and 1
for each ‘No’. If you score over 65, it is highly likely that you could settle your divorce
by mediation. Score between 65 and 55 and you are in with a very good chance. A
total between 45 and 35 means you have average chances of success. And a score of
below 30? Forget mediation – the pair of you have a fight on your hands.
Who is the Mediator?
The mediator is a qualified family lawyer, well versed in the intricacies of family law,
but also specially trained to handle the role of honest broker. There will be no pompous
jargon, no ancient leather chairs and shelves stuffed with dusty legal textbooks. The
environment will be relaxed and informal, the welcome friendly, the language
straightforward.
Because a mediator must not only be neutral but be seen to be neutral, he or she must
not have acted for either of you in the past. But it is helpful that the mediator is a
solicitor, so that he or she has the necessary legal expertise.
How Does It Work?
Firstly, the two of you must agree to try mediation. You then approach us and we will
arrange an initial half hour exploratory session, a Mediation Information and
Assessment Meeting (MIAM) for each of you, during which mediation and the
procedures will be explained and the basic issues to be covered will be identified. The
mediator will be completely neutral. That meeting may be free to you depending on
your financial circumstances. The Mediator will assess you to see if you are eligible for
free Mediation.
If you wish to continue with mediation after this initial session, the Mediator will
arrange a joint appointment for the two of you to discuss the Mediation Contract, which
you will both be asked to sign, and if you agree the Mediation will commence. A series
of meetings are arranged, usually around an hour and a half at a time. Typically, around
3-5 sessions are needed to finalise a comprehensive agreement, though that figure does
depend very much on the number and complexity of the issues involved, the degree of
co-operation shown by you and your partner, and the ease with which agreement can be
reached.
The mediator will help you establish the facts – your financial and other needs, the
values of your assets, and so on. He or she will then help you divide them in a way
which is fair to both of you and in which neither of you feels hard done by.
At any stage during this process, you are free to consult your own solicitor, though you
cannot bring him or her into the mediation room with you. You negotiate for yourself
in mediation. The mediator ensures that neither party attempts to browbeat the other, or
acts unreasonably in any way.
Whilst mediation meetings are usually only for the couple, with the Mediator, more
commonly now if it would assist the couple, arrangements can be made for a family
consultant or an independent financial advisor or a pensions expert to join a meeting or
meetings to advise and assist on specific issues to assist the couple to reach an
agreement.
At the end of these meetings a Memorandum of Understanding is produced, detailing
everything you’ve worked out. Who owns the house, who looks after the children, who
gets the car, what happens regarding contact with the children, how the money in the
bank is split, how much maintenance is to be paid – all these things will be included, in
language which is legally correct but free from legal jargon.
You each take this Memorandum away and mull it over. It is advisable, but not
compulsory, to talk it through with your own solicitor to ensure that it really does what
you want it to do. Finally, when you are happy with it, you sign it. You will definitely
need to consider obtaining the assistance of a solicitor to convert the mediated
agreement into a court order, if appropriate.
How Much Does it Cost?
Please ask for details. You may be eligible for Public Funded Mediation and if you
agree to attend a Mediation Information and Assessment Meeting the cost of Mediation
and your eligibility for free Mediation will be discussed in that meeting.