Is mediation right for me?

The recent amendments to the Family Procedure Rules have placed greater emphasis on Non-Court Dispute Resolution (NCDR), with mediation emerging as a preferred option for resolving family disputes. Mediation offers a confidential, cost-effective, and flexible process that encourages amicable resolutions, particularly in matters of finances and child arrangements.

On 29 April 2024, the Family Procedure Rules were amended to place a greater focus on encouraging parties to engage in Non-Court Dispute Resolution (‘NCDR’) before attending court.  The definition of NCDR has been expanded to include mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution hearing) and collaborative practice.

Mediation is one of the most popular forms of NCDR. It is confidential and parties can enter the process voluntarily. This allows the parties to jointly instruct a mediator who is a neutral, independent third party, to facilitate discussions to help the parties narrow the issues between them and guide them towards reaching an agreed outcome. This is applicable to both finances upon separation and child arrangements.  

There are advantages of mediation:

• Flexibility – the parties can choose at what pace the mediation progresses. They can also determine what the actual mediation process will look like.
• The costs of negotiating through a mediator can be more cost effective, but this depends on the number of sessions required.
• Engaging in mediation can help the parties to maintain an amicable relationship, which is important where parties are to continue to work together and co-parent.
• All discussions had within mediation sessions are confidential and any documents produced during mediation will be considered without prejudice and cannot be disclosed unless both parties agree.
• The process allows the parties to agree to more creative solutions to address the issues between them than would usually be imposed by the court.
• As the parties are given greater control to agree the terms of settlement, it is more likely that both parties will adhere to terms agreed, as opposed to an order that is imposed on the parties by the court.

There are also some perceived disadvantages to mediation, namely,

• A mediator does not have the power to compel a party to disclose information.
• If mediation is unsuccessful, then the parties may find that their costs significantly increase due to having to complete financial disclosure again either through solicitor negotiations or court proceedings. This can be mitigated by the parties agreeing to use the disclosure prepared for mediation.
• The outcome of mediation is uncertain. A successful outcome is not guaranteed.

However, there is more than one form of mediation available, and time should be taken to consider what form of mediation would be suitable in their case.

1. 1. Sole Mediation

This is the most common form of mediation, where a family mediator is instructed to help the parties to narrow the issues and possibly reach a settlement. This is also the most costs-effective for the parties, especially as the parties can work at their own pace and schedule as many or as few sessions as they wish. However, if an issue arises that is outside the scope of the mediator’s expertise, this can lead to a breakdown in the mediation process and expertise from a third party may be required.

2. 2. Co-mediation

Two mediators are instructed, who work together with the parties. The co-mediators may have differing areas of expertise/backgrounds which can increase the chance of success, as if there is a dispute, it is more likely that one of the co-mediators will be able to step in and advise. However, arranging sessions may be more restrictive due to their availability.

3. 3. Child involved mediation

Where the parties wish to agree arrangements for a child, depending on the age and maturity of the children involved, the parties may wish to give their child a voice. This form of mediation allows the children to speak to an independent third party specialist to articulate these wishes. The children will speak to a specialist mediator, who will help them to set out their wishes and feelings. Then with the permission of the children, the mediator will share these feelings with the parents, who will then be encouraged to reach an agreement taking into consideration the wishes and feelings of the children.

4. 4. Solicitor or counsel-led shuttle mediation

Parties can be supported either by their solicitor or by counsel during part of or the whole process. This takes place in separate rooms with the mediator shuttling between both rooms to assist the parties in reaching settlement. This method of mediation might be appropriate where there has been a breakdown in communication, or in instances were there may be a power imbalance. Rather than scheduling a number of sessions, mediation can be scheduled for a whole day, with the parties’ respective solicitor or counsel being present as needed.

5. 5. Hybrid mediation

This can take place in a manner similar to shuttle mediation. However, in hybrid mediation, the mediator will have separate conversations with each of the parties and unless they have permission to disclose information to the other party, matters relating to negotiation remain confidential. Solicitors often have a more active role in this form of mediation.

Parties can choose whether or not their solicitor is present at these mediation sessions, regardless of the type of mediation.

A mediator does not have the power to make a binding legal decision. Should an agreement be reached at mediation, the heads of terms will be recorded into a without prejudice document called a ‘Memorandum of Understanding’, this is not a legally binding document. The terms of the agreement must be converted into a consent order as must be prepared by a solicitor who will lodge it with the Court for approval.

It is important to understand that whilst mediation is an incredibly useful tool to assist parties in reaching financial settlement, the parties are still advised to seek independent legal advice on the agreement that is reached during mediation.

Written by Celine Jagmohan (Solicitor)

If you are considering mediation with your ex-partner or spouse, but you are unsure of what type of mediation would suit your situation, please contact us on 020 8290 0333 or email info@judge-priestley.co.uk to speak with one of our solicitors in the Family Team.

For further information on our Family Law services, click here.