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Should you go to mediation to resolve your dispute?

Figures obtained by National Family Mediation (“NFM”) this month following a Freedom of Information request appear to show that in 2016 over 60 % of couples ignored the requirement to attend a Mediation Information and Assessment Meeting (MIAM) before commencing court proceedings.

Questions have been asked about whether solicitors are encouraging clients to exempt themselves from mediation and whether the courts are properly monitoring applications or using their powers to direct separating couples to attend a MIAM.

At Trethowans, whilst we accept that mediation may not be right for everyone, it has many benefits and should always be considered as a way to solve family disputes without going to court.

However, before you can decide whether mediation is right for you though it is important to understand what it is, and what it isn’t!

What is mediation?
Mediation is a method of resolving issues which may arise on the breakdown of a relationship. It is a process which provides an alternative to going to court. Family mediation is increasingly used to resolve a range of family problems, such as disputes about contact with grandchildren as well as parental contact disputes and financial disagreements.

How does it work?
The process involves you explaining your concerns and needs to the other party in the presence of a qualified family mediator in a safe, neutral environment. The mediator is impartial, which means that they cannot give advice, only provide information. They are there to facilitate a settlement by assisting you both communicate with each other. The mediator does not make decisions, tell you what to do or impose a settlement. Instead, the mediator helps you both work through options and reality check your proposals. A mediator will also ensure that there is not a power imbalance in the negotiations.

What are the benefits?

• You both have the opportunity to improve your communication and chances of long-term cooperation which is essential where there are children.
• The mediator controls the process and you retain control of the decisions made.
• More cost-effective and quicker than going to court.
• A flexible process that can be used to settle a variety of disputes.
• Can help to reduce tension, anger and misunderstanding between you.
• Can be used whether or not you have seen a solicitor and proceedings have begun.

Is mediation confidential?
The mediator will not pass information on unless everyone agrees information can be disclosed. However, if it appears that someone has been seriously hurt, or is at risk, the mediator may alert the police or social services. What is said in mediation cannot be used in court later if mediation breaks down. This does not apply to factual information given during the mediation process, such as details of income and property. However it would cover negotiations and offers of settlement so that you can feel comfortable exploring lots of different options without fear of it later being used against you.

Any understanding reached through mediation is usually written down and signed by you both and the mediator. This memorandum of understanding is not legally binding and cannot be enforced in court unless you decide to make it a legal contract or court order.

How long does it take?
Mediation takes on average between 4 and 6 sessions, each lasting about an hour and a half. However the pace will be determined by you and the number of issues in dispute.

At Trethowans we have three specialist family mediators, spread across our offices in Salisbury, Southampton, Poole and Winchester, all of whom are members of Resolution. We also offer a free initial consultation so you can meet us before making a decision about the best way forward.

Article written by Kimberley Davies