Family mediation solicitors

Although mediation is a voluntary process and therefore you can refuse to attend, it is important to think carefully about what the alternative is and what the consequences could be if you refused.

Separation can be hard on everyone, particularly children caught in the middle of what can develop into bitter and drawn-out court proceedings. Mediation can offer the opportunity to put an end to the spiral of conflict and find tailored solutions that meet the needs of the whole family enabling you to get on with your lives.

Quite often litigation will leave one, if not both, parties dissatisfied with the outcome. In some cases, they will unhappily limp along with the arrangement until one of them applies back to the court or the dissatisfaction will lead to contempt and the prospect of enforcement proceedings perpetuating the cycle of litigation and acrimony. Conversely, arrangements reached through mediation with the input and support of both are more likely to endure. Mediation also offers the opportunity to ‘road test’ solutions and to review and refine over time as necessary.

A mediated settlement can achieve significant savings in costs when compared to an acrimonious solicitor/court-based route.

A MIAM — or Mediation Information and Assessment Meeting — is the first step whether you are contemplating court proceedings, wish to mediate, or simply want to know what the various dispute resolution options are available to you.

The MIAM will give you an opportunity to tell the mediator about your situation and the issues that need to be decided. The mediator will then be able to explain to you what your options might be, how mediation works and the likely costs and whether there may be other appropriate ways of resolving those issues such as collaborative law or arbitration.

The meeting will often take place with just you and the mediator and lasts approximately 45 minutes.

Unless you are exempt you cannot begin court proceedings without attending a MIAM with a mediator.

Our mediators will be able to tell you if your case is suitable for mediation. If it is, they will provide advice as to the next steps. If mediation is not suitable or you do not wish to continue with the process, the mediator can then provide you with a MIAM certificate that will enable you to start court proceedings.

A MIAM certificate is valid for four months. If an application to the court has not been made within that timeframe you will need to renew the certificate.

If you are contemplating making an application to the court to resolve either a financial dispute with your partner, or arrangements for a child or children,  then you must attend a Mediation Information and Assessment Meeting (MIAM) unless you are exempt.

The court will accept a limited number of exemptions, some of which will require specific evidence in support, which are as follows (as of February 2022):

• There has been domestic abuse. You will need to show that the other person was arrested for a domestic violence offence or provide details of any criminal proceedings. If you do not have this, then you will need to provide written evidence from a medical practitioner, domestic abuse organisation, or other professional body to show that domestic abuse has taken place.
• Either of you live abroad. You may however want to consider the possibility of online mediation where either distance or travel is an issue.
• You don’t know where the other person lives.
• You previously attended a MIAM within the last 4 months.
• There are already ongoing proceedings.
• You require an urgent hearing. Although most family disputes have a degree of urgency to them this will be determined by the court. Obvious examples would be where there was a risk of life or serious harm to a child or if the child was about to be unlawfully removed from the country.
• There are child protection concerns where for example the child is subject to a Child Protection Plan or the local authority are making enquiries into their safety.
• If the hearing needs to be made without notice to the other person.
• You have a disability that cannot be accommodated meaning you are unable to get to a family mediator within 15 miles of your home.
• If you or the other person is in prison or subject to bail conditions.
• You or the other person to the dispute is under the age of 18 years.
• You do not have a mediator within 15 miles of where you live. Online mediation is however a possibility where distance may be an issue.
• There are no mediators available within 15 miles of where you live that can arrange a MIAM within 15 working days (3 weeks).
• You are submitting a Consent Order to the court.
• You are making a financial application and either you or the other person is or about to be made bankrupt.

A MIAM is an opportunity to meet and build rapport with the mediator and ask any questions you might have. Take time to think about what you need to know ahead of the meeting and if necessary, write those questions down and bring them with you.

It is always helpful to have a notepad to jot down any useful information and if there are any relevant court orders bring those along too. Other than that, you do not have to prepare anything. Our mediators are there to help and support you and will guide you through the process.

First and foremost, they must be registered with the Family Mediation Council (FMC). All our mediators at Weightmans are registered with both the FMC and the Family Mediation Association (FMA) ensuring the highest possible standards.

Are they able to offer co-mediation as an option? At Weightmans we can offer co-mediation as well as collaborate with other professionals including financial neutrals, life coaches and mentors.

Cost is also an important factor and not just the initial Mediation Information and Assessment Meeting (MIAM) fee. This will largely be dependent upon the range and complexity of the issues in dispute but consider whether fixed fee packages are available. Please contact us to discuss the fixed fee arrangements that would be suitable to you.

It is important that you consider all the areas of your future you are likely to mediate over. Whilst a mediator cannot provide legal advice, they can provide neutral legal and financial information. Check that the mediator is experienced in handling those matters. At Weightmans all our mediators are experienced family solicitors practiced in handling the most complex financial and children matters.

When agreements are hard to reach, mediators step in to help create tailored arrangements for the future that work for everyone involved.

They will help you brainstorm, providing a safe space in which to discuss and explore ideas and test options before arriving at a solution.

Mediators can offer legal information as well as possible alternate options to consider which may not otherwise have been thought of.

Throughout, the mediator will help maintain focus ensuring that discussions remain centred where they should be on reaching a fair and amicable solution.

At Weightmans, our family mediators specialise in working with clients to create bespoke, effective arrangements following the breakdown of a relationship that let you move on with your lives.

Child Inclusive Mediation involves a family mediator who is trained as a child consultant talking with a child or children as a part of the mediation process in which arrangements are being made for them.

The process can provide an important means by which parents can gain an understanding of the views, needs and desires of their child.

Subject to the consent of both parents and child, it is the mediator’s decision as to whether Child Inclusive Mediation is appropriate.

Generally, it is only suitable for children aged 10 years and above although they may, in exceptional circumstances, be younger.

The child can either meet with the mediator who is already working with the parents or as often happens, with a separate mediator.

Consultations with a child usually last approximately 45 minutes. Siblings can be seen separately or together depending on what the children themselves prefer.

What the child may say to the mediator is completely confidential from anyone else including their parents. Often the child will have something they want the mediator to tell their parents for them to take into consideration when making decisions about them. It is through that process, with the child’s permission, that their voice in then brought into the mediation.

Both processes involve the participation of other family law professionals and experts to give advice and support to the parties during the sessions in what can be complex or difficult cases.

Usually, the mediator will meet with both parties and their lawyers as a group at the start of the process before they split off into their separate rooms. There, they may be joined by their accountants and other individuals necessary to help them making up a ‘team’ to facilitate an agreement.

The two ‘teams’ are able to meet in separate rooms to explore issues, address concerns, and develop proposals.

The mediator will go between the two, helping them explore the issues, address concerns, and develop options before hopefully arriving at a mutually acceptable set of proposals.

What distinguishes Hybrid Mediation is the agreement around transparency.

Ordinarily a mediator will not keep information given to them by one party confidential from the other side as it is thought that helps develop the parties’ trust in the mediator’s neutrality. In contrast, in Hybrid Mediation, the mediator will only share with the other side information which they have been authorised to disclose. This means that mediators can have separate, confidential meetings with each party.

There are many advantages to these processes as follows:

• They can be particularly effective where time is of the essence by reducing the need to pause and reschedule meetings in order for parties to take legal or technical advice.
• It can be much quicker with meetings consolidated into either a day or half day thereby requiring fewer sessions.
• There can be a greater certainty of outcome and less risk that someone may change their mind as a result of advice having to be taken outside of the process rather than within and during the sessions.
• Outcome documents are likely to be produced much quicker where the lawyers have been involved in the process and therefore understand at the outset the solution that has been arrived at.
• It can be empowering for vulnerable clients having their own ‘team’ around them to ensure they are appropriately supported.

Reaching an agreement in mediation does not automatically mean that it becomes binding upon each other.

The discussions within mediation are on a ‘without prejudice basis’ which means they cannot be referred to in court.

At the end of the mediation process each party will be provided with a Memorandum of Understanding which sets out the proposals that have been reached. In financial cases the mediator will also provide an Open Financial Statement which, unlike the Memorandum, can be referred to in future court proceedings if the mediation process breaks down.

Provided each remain satisfied with the proposals arrived at in mediation, whether having taken legal advice or not, steps can be taken to formalise the arrangement.

In financial cases, this will often involve preparing and filing a Consent Order with the court where there is an application for divorce. This can be a complex document to draft and should not generally be undertaken without expert legal advice.

In relation to child arrangements, the parties have a number of options. It is not usually necessary  for the court to make an order defining the arrangements for a child or children when a couple separate. Under the Children Act 1989 there is a ‘no order presumption’ which means the court will not interfere unless necessary to do so. Consequently, many parents will simply rely upon the Memorandum produced by the mediator or use that as the basis for creating a Parenting Plan although these are not legally binding. If court proceedings are already underway or the parties need an order, they can file a Consent Order with the court.

Family mediation is an opportunity to try and settle the issues arising from either a divorce or separation without having to go to court. It is your chance to save yourself time, money and the emotional stress that will be involved if you go to court. If you are at al unsure about the process, take time to discuss this with the mediator so you know what to expect.

• Make sure that you spend time thinking about the issues that need to be resolved. If necessary, write your thoughts down if you think that will help you to stay focused during the meetings. If the mediator asks you for information or documentation provide these promptly and in full. Make sure that you know your own materials so that you can explain them if need be.
• Give yourself enough time to attend the mediation. Avoid having to rush to or from meetings.
• At meetings, expect the unexpected. If you are not sure how to respond to a particular scenario being out forward by your ex, explain this to the mediator. Remember you do not have to make rushed decisions in mediation. You can have time between meetings to think about what is being suggested and take legal advice. If you feel yourself becoming stressed or upset during meetings, let the mediator know so they can help to find a way forward that meets your particular concerns. Remember that the mediator is there to help both of you reach a positive outcome.
• Listen and keep listening. Mediation is all about listening to what the other person is saying. Try and stay focused on the issues and the problems rather than how you are feeling about the other person. This is not easy, but if you can listen to what is being proposed, it will help you to consider all the options.
• Be determined that you can resolve matters without going to court. Whilst it may not be easy to reach a solution, thinking that you can, and remaining positive will take you a long way towards achieving a successful outcome. It takes determination and hard work to reach solutions to difficult problems.
• Think about whether your objectives are realistic. Mediation is not about winning but about finding practical solutions and workable solutions to the problems at hand. Try t look at the issues through the eyes of the other person and think about what might work for them as well as what would work for you.

Family mediation offers an opportunity to work together in a constructive and respectful way to find solutions to the problems that often arise following a separation without the need for expensive and often lengthy court proceedings.

It fosters better communication which is particularly important where there is an ongoing need to co-parent children lessening the upset or harm.

Whilst both offer a bespoke means by which a couple can reach an agreed outcome quickly and without the need for litigation there are some fundamental differences between the two processes:

• A mediator is there as a neutral expert appointed by the couple. A mediator cannot therefore provide legal advice or otherwise negotiate on behalf of one client or the other.
• The collaborative law process can be more expensive than mediation as generally each are paying for their own collaborative lawyer to assist in the negotiations as opposed to sharing the cost of the mediator.

Mediation fees vary depending on the firm and the experience of the mediator used although if you are on ow income and eligible for legal aid the Mediation Information and Assessment Meeting (MIAM) and mediation sessions will be free.

Even if you do not qualify for Legal Aid, the Government are offering separating couples a £500 voucher towards the cost of mediation sessions for eligible cases.

The mediator should explain the cost of the mediation sessions which are usually offered on a fixed fee ‘pay as you go’ basis.

The default position is that each will pay their own share of the mediation costs. There is however no fixed rule and the couple are able to come up with a different solution if that would work better for them.

Cost sharing, in whatever proportion, is usually considered the best way to pay for family mediation as it ensures each has an investment in the sessions.

Mediation is a voluntary process and therefore a parent cannot be forced to attend. If this leads to court proceedings having to be issued it is likely the court will question why they did not attend.

If the refusal was unreasonable, the court has the power to suspend the proceedings.

The mediation voucher scheme, launched by the Government, provides separating couples with a £500 voucher for mediation services with the aim of finding amicable solutions to their disagreements.

The voucher is not means tested but the offer is time limited on a ‘first come first serve’ basis for the following eligible cases:

1. A dispute regarding a child
2. A dispute regarding family finance matters where there is also a dispute regarding a child.

The voucher does not cover the cost of the Mediation Information and Assessment Meeting (MIAM) but if you decide to proceed with mediation and are eligible for the voucher, your mediator will apply for you.