Options for managing impasse in mediation
24 January 2024
Mediation offers a forum for the discussion and resolution of the issues that arise from a relationship breakdown, from financial matters to child arrangements. Mediation is voluntary and empowers you to make decisions for your family together, rather than having decisions imposed on you within the court process. In traditional family mediation, the mediator facilitates and supports a discussion around the issues identified for resolution. They listen to you both - and help you to identify any goals or concerns. They ensure that you have both had an opportunity to speak and be heard, and ensure that decisions are made jointly and fairly. Helpful legal information can be provided. Your mediator also highlights when you may need further independent advice, such as legal or financial advice.
Sometimes, although everyone involved has entered into mediation in good faith, it proves difficult to reach a consensus on what is best for the family, in relation to either child arrangements or financial settlement. All is not lost, however. There are resources which can be utilised within the mediation process to help you reach a resolution.
Often, when an impasse has been reached, your mediator will suggest that you take some legal advice on the issue. For some, this feels counter to the mediation process; they may want to keep a lawyer out of things, as they feel it may make things worse. In practice, if both parties are getting sensible advice from specialist family lawyers alongside the mediation process, they are more likely to have reasonable expectations as to the outcome - and have a better chance of finding a solution that feels fair to everyone involved.
When there is an impasse in relation to arrangements for the children, it can sometimes be helpful for the children’s voices to be heard within the process. Your mediator will discuss whether or not it would be appropriate for any children over the age of 10 to have their voices heard within the mediation process. If so, the mediator will meet the children or arrange for another suitably qualified professional to meet with them. This is known as child-inclusive mediation. It is important to note that the children will not be asked to ‘pick sides’ or make decisions. Instead, they will be offered an opportunity to speak to the mediator freely and confidentially and the child will decide what, if anything, they want to be fed back to the parents. You will find more information about child-inclusive mediation here.
Even in the most amicable separation, it is natural for emotions to run high and this can lead to a breakdown in meaningful communication. Family consultants are experienced couples and family therapists who have particular expertise in working with separating couples. They can join mediation meetings to offer additional support or can meet with you outside the mediation process to work on communication and co-parenting issues.
Financial advisors can join mediation meetings to make sure everyone understands the financial matrix within which the decisions are being made. Often, one member of the couple has been responsible for the finances throughout the relationship; the other may need some support to ‘catch up’ their knowledge. Alternatively, you may have a complicated actuarial report that needs to be translated into a layperson’s terms. The Financial Advisor’s role is to demystify the financial information available and provide neutral, best-interests advice to help you find a solution that leaves your family in the best financial position overall.
Hybrid mediation is an approach that blends traditional family mediation with aspects of the civil mediation process. Commonly, both parties are legally represented and the mediator is able to meet and hold private conversations with each party and move between you to try to broker an agreement. It is particularly helpful in high-conflict cases, or in cases with complex assets when it might be very helpful to have legal advice in the room.
It might be that you have made good progress in mediation, but there are one or two narrow points where you really are stuck and unlikely to make any further progress to agreement. When these cases end up in Court, all the hard work that has been put in to date is generally lost. The parties will be litigating all points from scratch, even those where they may have had a provisional agreement in principle.
As an alternative, you may wish to consider bringing either an Early Neutral Evaluator or Arbitrator into the process to look at the discreet areas of disagreement, leaving in place proposals on other issues that you are both happy with.
Early Neutral Evaluation
An evaluator is usually a well-respected family lawyer who is asked to look at your case and provide their opinion on how the outstanding issue/s could or should be resolved. The evaluator’s view is not binding, but will often help bring the parties closer together and, hopefully, find a solution.
An arbitrator is, again, usually a well-respected family lawyer but, rather than giving an opinion, you award an arbitrator the power to make a binding decision on the issue/s they are appointed to resolve.