Family Mediation
Family mediation is mainly used for couples who are splitting up or divorcing. You can use mediation to sort out what will happen to your house, where the children will live, contact arrangements, and money matters.
Further information is given below on
Advantages and disadvantages
Which disputes are suitable?
Cost
Timescale
Financial dispute resolution procedure
Legal advice
Confidentiality
Procedure
Consulting children
Outcomes
Who provides family mediation?
Advantages of using family mediation
- you decide the terms of agreement
- you can sit down and talk to your ex about arrangements
- you can try to keep a good relationship, especially valuable if you are parents
- if you can agree, it is likely to be cheaper than going to court
- you can talk about all the issues which are causing problems
- mediated agreements can be changed as circumstances change
Disadvantages of using family mediation
- it is not likely to be safe or suitable if there has been violence in the relationship
- it might not resolve the issues in dispute
- if it does not result in an agreement, it can add cost and time to the divorce process
- it requires parties to attend together - which will be an advantage to some and a disadvantage to others
For more information about family mediation see our Advicenow family mediation website. You can download three guides:
- What is mediation?
- We're splitting up
- How mediation works
You can also listen to short podcasts giving a snapshot of what happens at a mediation meeting.
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Which disputes are suitable?
When couples or families split up, there are a lot of issues to be resolved. Virtually any of these can go to family mediation. This could include:
- what will happen to the children, where they will live, which parent they will live with, and contact arrangements
- sharing of parental responsibility
- what will happen to your house, whether you are owners or tenants
- how to split up your possessions
- money matters
- future communication
Mediation is not always suitable, and not everyone wants to try mediation. Mediation itself is not compulsory, but meeting a mediator to discuss it is mandatory. There are a few exceptions - ask your solicitor for more information if you are worried. You should also bear in mind:
- mediation is voluntary - if it is going to work, both of you need to be prepared to take part
- you need to feel safe sitting in the same room as your ex - if you feel frightened, bullied or intimidated this is unlikely to work
- both of you need to be honest when talking about your financial situation - if you don't trust your ex to tell the truth, don't be afraid to say so
Mediators will talk to both parties separately before the process begins, either on the phone or face-to-face, to check that they are happy to try mediation.
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Cost
It's really hard to work out how much it's all going to cost at the start. Most mediators are rather shy of giving information about their charges on websites and leaflets. But they should always give you this information at the initial meeting.
There is the cost of the initial Mediation Information and Assessment Meeting (MIAM), which is now a requirement for anyone applying to court for mediation, whether you have legal aid or not.
Then there is the cost of the mediation itself and your legal advice. The total cost depends on lots of different things: the number of issues to be decided, how complicated they are, how long it takes you to reach an agreement, who you go to, and whether you can get legal aid.
If you can get legal aid
You may be able to get legal aid to cover your costs if you are on a low income and only have limited savings. Ask your solicitor or mediator about it, or check online by using the Legal Aid calculator. If you can get legal aid, make sure you choose a mediator that will offer it - not all of them do.
If you are on legal aid, it is definitely cheaper to use mediation than to get a solicitor to negotiate for you. Legal aid for mediation (and the legal advice you get alongside it) does not need to be paid back. But legal aid to pay for a solicitor to negotiate for you or take the matter to court may have to be.
If you're paying for mediation yourself
Here are some ballpark figures:
- You are required to attend a Mediation Information and Assessment Meeting (MIAM) with a mediator. This is a meeting to consider if medaition is suitable, and it can be held with you and your partner together or separately. The cost depends on the mediator but as general guidance, legal aid pays (for those eligible for legal aid) £80 per person for a MIAM, or £130 for both parties attending the MIAM together.
- If you need to agree arrangements about your children, it will probably take 2-3 sessions. In total, this might cost you between £100 and £500 per person.
- If you need to resolve a range of issues about your children, your home and your money, it will probably take 4-6 sessions. In total, this might cost you between £500 and £1200 per person.
Don't be afraid to ask about charges:
- Always ask whether the initial meeting is free - some services charge for this, some don't. It will always be free if one or both of you are on legal aid.
- Ask whether the charge is per session or per hour, and how long a session lasts.
- Always check whether or not the price includes VAT.
- Ask whether the mediation service has funding to help people on a low income who don't qualify for legal aid.
If you can manage to reach an agreement through mediation, it's generally much quicker and cheaper than getting a solicitor to do it for you or going to court. Don't forget that you will still have to pay for your own solicitor to advise you as well. This will cost you from £120 to £300 per hour, depending on the experience of the solicitor. Don't be afraid to ask about solicitor charges when you first get in touch.
Be aware that if you don't manage to reach an agreement through mediation, you'll probably have to ask a solicitor to negotiate for you. You'll have to pay for this on top of the mediation costs. But if you use the financial information that's already been put together and build on any progress you made during mediation, this will reduce solicitor costs.
This information is taken from the Advicenow leaflet 'What is mediation?' If you want to know more about family mediation, or download some user-friendly leaflets, quizzes and podcasts on this subject, have a look at Advicenow family mediation.
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Timescale
Children-only mediation can take an average of three to six hours, usually spread over two or three sessions. These can be arranged at times to suit you and your ex, usually over a few weeks. All-issues mediation involving financial and property matters can require more sessions.
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Financial dispute resolution procedure
From June 2000 an additional stage was introduced into court proceedings dealing with financial claims on divorce. At its heart are two key features:
- Form E, a standardised financial statement to be completed by both parties in every case. This is intended to encourage you both to be honest about what you have, and what you need. Many family mediators use this form to sort out financial matters during mediation.
- A financial dispute resolution (FDR) hearing with the judge in the case. Both parties must attend in person - you can't send your solicitor instead. At least 50% of all cases settle at, or shortly after, this hearing.
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Legal advice
Parties are always advised to get independent legal advice before beginning mediation, and to check out proposed agreements with their legal adviser during the mediation process and before signing any final agreement. The mediator should not give legal advice to either party, but can give information about the legal process and court procedure.
If you reach an agreement through mediation on some or all of the issues in dispute, the mediator will write it down. It is likely to be called a 'memorandum of understanding' or a 'statement of outcome'. You should talk to your solicitor about it before you reach a final agreement. If you both want the agreement to be turned into a legally binding order, your solicitors can arrange this through the court.
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Confidentiality
Confidentiality works in a slightly different way in family mediation than in other types of mediation.
Financial information. - If you are mediating financial or property issues, you will be asked to disclose written information. Some mediators will use the court 'Form E', others will have their own disclosure forms. This information is not 'privileged' - it can be used by either party in future court hearings if the mediation doesn't work.
Other discussions. - What is said in family mediation is confidential, and cannot be quoted in any court proceedings. This is so you can negotiate freely without any offers being used against you in the future. However, if the mediator believes that someone might be at risk, especially a child, their code of practice means that they can't keep this confidential. They will report it to the relevant authority, and will usually tell you that they are doing this, and stop the mediation.
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Procedure
In England and Wales anyone applying to court for their divorce proceedings must first attend a meeting with a mediator to see whether mediation is suitable for them, the case, and all the circumstances. This is called a Mediation Information and Assessment Meeting (MIAM). You will be expected to contact a mediator, and there are a number of ways to do this:
- you might approach a mediator or local mediation service directly
- your solicitor can refer you to mediation
- the court might refer you to mediation
Mediation Information and Assessment Meeting
If you and your partner are willing to attend together then the Mediation Information and Assessment Meeting (MIAM) will be held with both of you and the mediator, but you can ask for separate meetings with the mediator. At this meeting, the mediator will explain what mediation is and help you think about whether it is suitable for your case.
At that meeting, the mediator and the parties must sign what is called Form FM1 to confirm that the parties have attended a MIAM, or to confirm the parties have not attended and the mediator has decided the case is not suitable for mediation. There are only a few specific reasons that the mediator can give as to why mediation is not suitable, including that one party not being willing to attend a MIAM.
The requirement to attend a MIAM doesn't mean that you have to mediate - you are only required to meet with a mediator to discuss whether mediation is suitable.
There are exceptions to this requirement that all applicants for divorce must attend a MIAM. These include where there has been domestic violence that resulted in a police investigation or civil proceedings; bankruptcy; and if the other party can't be located. Also, where the matter is urgent or where social services have been involved because of child protection issues, you will not be required to attend a MIAM to consider mediation.
In addition, if you have contacted three mediators close to your home (within 15 miles) and no mediator can offer you a MIAM within 15 days, this would also mean there is no requirement to attend a MIAM.
Intake meeting
Once you have decided to go ahead, mediation might begin with some form of intake procedure - either face-to-face or on the phone. This is a chance for you to talk further to the mediator about what is involved in mediation. If you are going to have this intake meeting in person, you can choose whether to go along with your ex, or to go on your own. Where financial issues are in dispute, some mediators will ask the parties to complete a form giving information about income, expenditure and assets before the first appointment.
Mediation sessions
The mediator will then meet with the parties together at joint sessions. The number of sessions needed depends on the complexity of the dispute and the number of issues that the parties would like to resolve.
The mediation process follows a five-stage format:
1. engaging the parties
2. establishing an agenda
3. exploring the issues
4. generating options
5. reaching agreement
There is flexibility within this structure, however, and mediators will have different ways of using it. For instance, where there are several issues to be dealt with it might be appropriate to work on one issue at a time, rather than all at once, and so build agreements one by one.
If you want to find out more about how family mediation works, have a look at Sandra’s story. There are also leaflets, quizzes, podcasts and a discussion forum on the Advicenow family mediation website. You can get details of local family mediators from the Family Mediation Database.
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Consulting children
If parents are splitting up, and are using family mediation to sort out arrangements for their children, the mediators' code of practice makes sure that they take the views of the children into account. They can do this in two ways:
- The mediator can ask the parents to think about what the children want and need, and to talk to their children about this before the next mediation session.
- The mediator may invite the parents to bring the children along to the next mediation session, so that they can talk to the mediator directly about their wishes and feelings. This will, of course, depend on the age of the children, and the views of the parents.
Mediators who meet with children directly have had special training in this area.
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Outcomes
In England and Wales, when the parties reach agreement in mediation, the mediator will help them produce a written agreement. This summarises the results of the mediation process, the proposals reached by the couple, and any background information on which the proposals are based. It also notes any issues that were not resolved.
This 'statement of outcome' or 'memorandum of understanding' can be useful in presenting proposals discussed in mediation to each party's independent legal adviser, for advice on whether the agreement is appropriate, and for turning it into a binding legal agreement if this is what the parties want. It is not a legally binding agreement in itself.
In Scotland, not all mediations about children's arrangements result in a written summary; some mediators will only provide this if requested by the parties. If the parties so wish, the outcome of mediation can be formalised into a binding agreement by a solicitor.
Information about research into family mediation can be found in ADR Research Summaries.
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Who provides family mediation?
Mediation in divorce and separation cases is provided by trained family mediators. Some mediators are also family lawyers, but mediators are not required to be legally qualified.
Family mediation providers are approved by the Family Mediation Council. You can find a local mediator through their website.
Relationships Scotland lists family mediation providers and has information about family mediation.
If you are eligible for your family mediation to be paid for by Legal Aid, you will need to find a family mediation provider that has a contract with the Legal Services Commission (LSC). These services must comply with the Mediation Quality Mark developed by the LSC. This sets a standard for issues such as providing clear information for clients, mediator accreditation, professional practice supervision and suitable premises.
The Family Mediation Database is funded by the government and provides a listing of family mediation providers, including those that can provide mediation under Legal Aid. top
October 2011
