Family Mediation Week 2020: The role of a mediator and the benefits of mediation
21 January 2020
In this article, I would like to explain the role of a mediator and to raise awareness of the benefits of mediation in conjunction with Family Mediation Week 2020, organised this year by the Family Mediators Association on the topic of “Conversations”.
We all know deep down that it is better to talk about our problems and tackle them face-on rather than ignore them, even if we are reluctant to do so and fear the consequences. If we don’t, our emotions may get the better of us and have damaging consequences. For this reason alone, isn’t it better that couples going through divorce or separating try to have “conversations” through mediation, rather than end up in costly litigation?
What is mediation?
A mediator meets with a separating couple over the course of a number of meetings to facilitate discussions regarding future arrangements concerning their children or financial matters. He or she asks the couple to explain what they are hoping to achieve in the short and long term and, as part of the mediation process, works with the couple to explore options for resolving all issues so as to help them achieve the best outcome for their family.
The principles of mediation:
- The mediator is impartial and so does not judge or take sides.
- Mediation is voluntary – the couple sets the agenda and makes the decisions, as opposed to a court imposing an order upon them.
- Discussions are “without prejudice”, which means they cannot be referred to outside of mediation, unless the couple agrees. Mediation allows people to be open and honest about different options and, essentially, put their cards on the table without the fear of this being thrown back at them if an agreement is not reached.
- Mediation is confidential, unless there is evidence of children being at risk of harm.
- Financial information provided in the mediation process can be referred to outside of the mediation. This will save time and costs if the mediation breaks down and the parties have to use another method to resolve issues.
The benefits of mediation:
- Face-to-face communication in mediation enables a separating couple to listen to one another’s wishes and feelings, so they each have a better understanding of the other person’s viewpoint.
- The mediator encourages the separating couple to put their differences to one side for the sake of their family and to ensure their children are kept at the heart of the process.
- Communication between separated couples is more likely to improve, which in turn enables parents to have a more positive co-parenting relationship with one another.
- Mediation allows couples to move forward at their own pace. One person may be struggling emotionally and require additional support and sensitivity. Alternatively, if time is of the essence, the separating couple can address matters over several meetings within a short time frame.
- Mediation is often much quicker than other dispute resolution processes. Face-to-face communication allows couples to address any issues there and then, as opposed to in written correspondence, where misunderstandings can quickly arise and where such correspondence can become positional and protracted.
- The costs of mediation vary, depending on the circumstances and the issues involved, but almost always mediation is far more cost effective than most other means of resolving family disputes.
In my experience, mediation works best where the parties have experienced and supportive solicitors to give them advice alongside and throughout the mediation process. Sometimes, particularly in more complex mediations, it can be very helpful if the solicitors attend the mediation sessions with their clients. A mediator cannot give specific legal advice himself or herself, but can flag up to the couple and their legal advisors the need for further advice if suggestions or proposals are made in mediation that are outside the remit of what a court is likely to order. The mediator can also provide information and guidance to assist the couple in making decisions.
Other professionals, such as financial advisers, accountants, pension experts, family consultants and counsellors, can also attend mediation meetings.
Is mediation suitable for everyone?
Before mediation can begin, the mediator needs to assess whether mediation is viable at a Mediation Information and Assessment Meeting (known as “MIAM”). If one person is fearful or there has been a history of domestic abuse, mediation is unlikely to be suitable. In those circumstances, a mediator will signpost the parties to appropriate support and guidance.
Mediators must always be alert to any power imbalance between a couple and ensure the mediation environment is a safe space for the couple to resolve issues. Sometimes, mediation takes place with the couple in separate rooms (known as “shuttle mediation”), if one person does not feel able to sit in the same room with the other person. However, where possible, mediation takes place with both parties in the same room, as clearly this means there is a much higher chance of repairing communications between the separating couple.