Resolving your differences in alternative ways: Mediation

Many families going through a divorce or separation prefer to resolve their financial arrangements and child care in an amicable and civilised way. This approach has obvious benefits, not least in avoiding the uncertainty of going to court.

The ideal scenario is for separating couples to work together to find solutions and put the family’s best interests first rather than becoming embroiled in potentially costly and lengthy legal battles. However, many families need assistance to make this happen.

There are many non-court dispute resolution (NCDR) options available to couples going through a relationship breakdown, including collaborative law, negotiation through solicitors, arbitration, evaluation by a neutral third party, private judging, and mediation.

As of April 2024, changes to the Family Procedure Rules (which govern certain family law court proceedings) encourage couples to consider NCDR before initiating a court process. These changes require separating couples to explain to the court what steps they have taken to resolve their dispute before making a formal application. Potential cost sanctions may also be imposed on those who demonstrably fail to engage in NCDR.

Although there are many alternative options for families, this article focuses on how mediation can be a positive and successful way to resolve financial and/or child-related arrangements following a separation or divorce.

What is mediation and how does it work?

Mediation is an NCDR process. The couple meets with a professionally trained, neutral, and independent mediator who will help them work out arrangements for their children and/or finances. It is a voluntary process the couple chooses to engage in rather than one imposed upon them.

Before any joint meetings, the mediator meets each party separately to assess whether the issues can be resolved without court and whether there are any safeguarding concerns. This appointment is confidential and known as a Mediation Information and Assessment Meeting (MIAM). At the MIAM, the mediator will also provide information about the options available for NCDR and discuss the pros and cons of each. If both MIAMs are successful, the mediator will arrange a joint session with the couple to begin the mediation process.

The role of the mediator is to help resolve disagreements over common issues faced by separating couples, such as arrangements for any children and the division of assets.

By meeting with the couple together, the mediator will facilitate discussion in a safe environment. They will review the disputed issues and assist the couple in negotiating an agreement.

Some mediators offer an opportunity for children to be involved in the mediation, giving them a voice in the process. However, child-inclusive mediation is always conducted in an age-appropriate manner to shield them from being directly involved in decisions their parents make.

Why choose mediation as a solution?

Couples choose mediation because they want to remain at the centre of the discussions that need to be had. They want to avoid the uncertainty, cost, and delay of going to court. Mediation helps them retain control over decisions arising from their divorce or separation, from child arrangements to the division of finances.

Mediation allows couples to discuss these important life decisions with someone who will remain neutral and independent but professionally trained to identify what is important to each party. The mediator will help facilitate discussion and explore options. The aim is to reach amicable solutions as to the best way forward, both for the couple and any children involved.

Mediation is a flexible process. It can be tailored to meet the needs of the family and can take place either face-to-face or remotely via video calls (such as Zoom or Teams).

Do I need legal advice during mediation?

If either party already has a solicitor, they may make the initial mediation referral, but couples can easily arrange mediation themselves. However, your solicitor(s) will not be present during the mediation sessions because the meetings are confidential between the couple and the mediator.

While a mediator may be a qualified family lawyer - as many are - they cannot give legal advice to either party during or alongside the mediation process. They may, however, provide information to help you work towards your own decisions.

When a relationship breaks down, there are many legal issues that must be resolved, such as how your finances will be arranged, who your children will live with, and how they will be supported. This means receiving legal advice alongside the mediation process is essential to understanding how the law applies to your situation.

The implications of these decisions go far beyond the actual divorce and may affect your future. A specialist family law solicitor will help you understand what a fair outcome may look like and explain the legal implications of any proposed settlement. In our experience, couples who receive independent legal advice alongside the mediation process are more likely to reach a fair, sensible, and workable agreement.

What happens after mediation concludes?

If you reach an agreement in mediation, the mediator will prepare a written summary of the proposed settlement terms (known as a memorandum of understanding) and a summary of any financial disclosure exchanged between the couple.

The agreement reached in mediation is not legally binding, so you can - and should - seek legal advice from a specialist family lawyer after mediation has concluded. If, after taking legal advice, both parties are happy to proceed with the agreed terms, the lawyer can convert the agreement into a legally binding and enforceable court order.

How Birkett Long can support you through mediation

If you would like to discuss whether mediation could help you and your family, please get in touch with us for a free 15-minute consultation. At Birkett Long, we have links with many family mediators and will be happy to signpost you in the right direction. We can also provide the specialist legal advice you need alongside the mediation process.

This article was originally posted on 9 August 2023 and updated on 17 January 2025.