Frequently Asked Questions about Family Mediation
Is mediation suitable for everyone?
Mediation will often help in situations where communication is not working well, or where you and your ex could be open to exploring options about how to reach an outcome that will work for everyone, but you may be finding it hard to identify options and discussions don’t turn out well when it’s just the two of you talking it through.
There are some cases where mediation is not appropriate. You will be able to discuss this in more detail at your first meeting with the mediator.
What is the role of the mediator?
The mediator is committed to ensuring that you both contribute equally in the mediation meetings. We help you to actively listen to one another and then consider all the information you have.
You can then negotiate and seek outcomes which are realistic and fair.
We balance the conversation, help you to test the reality of suggestions made and prevent conflict from escalating, conflict which prevents you from making agreements for the future.
The mediators are not there to judge you or your situation.
They do not make decisions for people. They may raise options which you may not have considered but it is up to you both to decide if those options will work in your situation.
You decide what you want the outcome to be: we will give legal information and use our conflict resolution experience and skills to help you on the way.
Is there a formal mediation agreement we have to sign?
Yes – if you both agree to mediation, you will be asked to sign an Agreement to Mediate which sets out the terms of the mediation and the formalities which govern the mediation meetings.
Is mediation confidential?
Yes. What is discussed in the mediation is confidential. Courts will regard the discussions you have had in mediation as privileged.
Privileged – what you say during mediation cannot later be used in Court as evidence. We will ask each of you to agree that all discussions during mediation take place only to attempt to reach a settlement and are on the basis that they are confidential and will not be referred to in evidence in any court proceedings or affidavit about the same issue.
However financial information disclosed during property and finance mediations written up by the mediator and signed by both of you is regarded as ‘open:’ and it can go before the Court if you cannot agree how to split your assets in mediation.
Any facts provided by either of you during mediation about financial matters will need to be verified with supporting documents.
Where you cannot agree an outcome in mediation the open financial information can also be used by your solicitors as a basis for further discussions.
What happens if we cannot agree on everything?
The aim is to help you reach an agreement on all issues but the outcome is in your hands. If it is not possible to agree everything in the meetings, we can provide information about other dispute resolution options such as arbitration, MedArb and the Certainty Project.
As we write up the proposals there may be an unresolved difficulty/ies, solicitors will know where the sticking points are and at that stage some people instruct their solicitors to negotiate a final agreement on their behalf covering the remaining unresolved issues only.
Ultimately if you cannot agree, the Court may have to make the decisions.
What are the issues for children?
The major decisions affecting the children may include:
- Where they will live.
- What arrangements will be made for them to spend time with each parent and other relatives in term time, holidays and on special occasions (birthdays, religious festivals such as Christmas,Diwali, Eid etc or significant days such as the New year.)
- Special provisions, if any, which might need to be made about such matters as education,
religion and health.
- The level of financial support required to meet their needs.
- How they can be appropriately consulted.
Whilst we know that you will come into the process sometimes with very different views on some or all of those matters, the Mediator will help you work together as co-parents, to identify solutions based on your children’s needs.
Often what lies at the heart of the difficulties is the fact that communication is not working well between you and trust is low.
We can help you to agree on how you can communicate best going forwards in a way that will reduce the difficulties between you, and nd in turn we can help you build a new co-parenting relationship that is very different from the way things have been until now. Once you start to work together in this way, the trust slowly grows and the co-parenting work can take place in a way that meets the needs of your children.
Divorce/separation can be a life changing experience for children. But the way parents deal with it will determine the experience ? their children have of it and how this change affects them in the short and the longer term.
What about the Child Maintenance Service?
All parents have the choice of setting up a child maintenance arrangement using the CMS – formerly the Child Support Agency – or, making a private agreement about child maintenance.
There are fees to be paid for using the CMS but not for private arrangements. For more information call the CMS on 0800 988 0988.
Will we have anything in writing?
For mediations about finances, you will have the Open Financial Statement – a document setting out your respective financial positions – and towards the end of the mediation we will produce a Memorandum of Understanding which is a record of the proposals you have made in mediation
You will be told that you should consult your solicitor on the contents of both documents. A solicitor will advise you on the personal consequences of what you intend to agree.
The Memorandum of Understanding is not legally binding, but is intended for your solicitor to use, together with the Open Financial Statement in preparing a legally binding consent order or agreement, where appropriate.
For mediations relating to children, we can draft a Co-Parenting Plan for you which will cover all the matters you have discussed in mediation.
Where does mediation take place?
Mediation meetings are held in a neutral place. We will coordinate the location and find dates in the diary that work for everybody. Presently many mediations are taking place online
How will money and property issues be resolved in mediation?
You will be asked to provide details of income and spending (as far as this can reasonably be predicted) and details of the value of your assets. This means;
- Providing details of any property, savings, shares, insurance policies, pension rights and other capital assets in which either of you have an interest.
- Making a list of all the money you usually earn or receive on a monthly basis
- Working out what life costs you now and making a reasonable estimate of what you would expect to have to pay for in the future including housing.
- Identifying loans and debts for which either of you are liable.
- We help you in mediation to assemble all this information to provide an accurate picture of your financial position.
Using this information, you will be helped to negotiate on matters such as;
- The Family Home – who should live there, should it be sold and, if so, when and how should the money be divided? (In the case of a rented home, should the tenancy be changed or transferred?)
- Maintenance and Child Support – how much should each contribute towards the living costs of the children. (and possibly of the adults?)
- Possessions – how should these be shared between you?
- Future benefits – such as pensions. How are you going to deal with these?
On all these issues the final outcome will depend very much on your views about;
- What is “fair” (which may not necessarily mean a 50/50 split).
- What is realistic?
- What best meets the needs of all members of the family, particularly the children?
- How your circumstances might be expected to change in the future?
See Property and Finance Mediation for more details
Can any arrangements we make now be changed later?
Where finances are concerned, some Court Orders will have a once-and-for-all effect as far as capital assets are concerned. This is one reason why it is advisable to have a solicitor to advise you. Nothing is binding until both parties sign a Consent Order at this stage.
Other Orders, such as those relating to the amount of maintenance paid to a spouse/for children, may be changed at a later date on further application to the Court.
The Court may also be prepared to consider an application to change an Order relating to the children if the original circumstances have altered significantly.
Where no Court Order has been made about a particular issue, the arrangement may be changed by agreement between the two of you at some later date. Many people return to mediation when life changes and they seek to update the agreements they have made.