Alternative Dispute Resolution at Davenport Lyons - Mediation
What is Mediation?
Family mediation is a voluntary process by which a couple and any other family members agree to the appointment of a neutral third party (the mediator), who is impartial, to assist them in reaching their own informed decisions by negotiation. The impartiality of the mediator is the cornerstone and fundamental principle of mediation.
The process can be utilised to make decisions in relation to separation, divorce, dissolution of civil partnerships, children’s issues, property and financial matters and any other issues which may arise. The mediator has no authority to make or impose any decisions upon either party and the process is not adversarial and non confrontational.
The role of the mediator is to manage the mediation process, provide the couple with any relevant information that may be helpful to them and to suggest possible solutions and assist the couple to explore these. Mediators do not give legal advice, although they can provide legal information, in order to assist the couple in understanding the principles of law applicable to their circumstances and the manner in which those principles are applied.
All information and correspondence made available in the mediation process will be shared openly between the couple. However, discussion and negotiations about possible proposals are subject to mediation privilege and cannot therefore be repeated subsequently outside of the mediation. This is so that options can be discussed freely.
Accordingly decisions arrived at in mediation will be binding only after the couple have obtained independent legal advice upon those proposed decisions, from their respective legal advisers. The decisions and any consensus reached in mediation are recorded in a memorandum of understanding and if appropriate a financial statement, which can then be used to take separate legal advice and obtain a Court Order.
For those couples who choose to mediate, the process is an effective dispute resolution model which can help them to reach a consensus in relation to matters ranging from financial provision, care arrangements for children and the sharing of assets following a period of cohabitation.
The process is future focussed and not adversarial. Mediation therefore, encourages couples to focus upon reaching decisions together, within a cooperative and conciliatory framework. This is particularly important where children are involved, as the mediation process can assist separating and divorcing couples to establish and in some cases, to maintain effective communication.
Not only are the couple are in control of the pace of the mediation, they also set the agenda of the process.
Most importantly, mediators do not make decisions. They assist couples in making their own decisions, which best suit, their particular circumstances. Many couples find mediation an attractive model, as they are responsible for making decisions about their future, rather than having a decision imposed upon them by the Court.
Why not Mediation?
Mediation is not chosen as a dispute resolution process by all couples and neither is it suitable in all cases. In circumstances where one participant in mediation is not prepared to give full and candid disclosure of all relevant circumstances, financial and otherwise, the process does not have any mechanism by which that party can be compelled to produce the requisite information or documentation. That is due to the voluntary nature of the process.
As mentioned above, mediators are prohibited from providing legal advice, due to the impartiality of their role. As a result, couples participating in mediation usually retain the services of solicitors outside of the mediation process to provide legal advice and which forms the backdrop to the negotiations in mediation.
Should the process prove successful, it will however, be necessary for solicitors to be instructed as the proposals discussed in mediation are only binding upon the couple, once they have both had the opportunity of obtaining independent legal advice. In addition, the mediator cannot prepare any Court documentation to obtain a Court order if that is necessary.
Finally, there is no guarantee that at the end of the process, a consensus will be reached. In a small number of cases, the mediation process may not yield agreement between the couple, which in turn will mean that further costs are incurred in participating in another dispute resolution process.
Couples who are attracted to mediation due to the level of control that they have over the process and it’s non adversarial nature, but who would prefer to have the support of a legal adviser during negotiations, may wish to consider the collaborative law model instead.