Family mediation week – Q&A

This year’s Family Mediation Week is from 17 – 21 January 2022. It is organised by the Family Mediation Council, with the aim of promoting family mediation and its benefits for separating families. 

To mark the start of Family Mediation Week, we’ve put together a quick-fire Q&A. We really encourage anyone anticipating or going through a separation to have a read – many couples find that the mediation process allows them to take control and to make decisions together, even where they thought it would not be possible.

What is family mediation?

The meaning of family mediation is a voluntary process designed to help separating (or separated) parties to reach decisions on matters surrounding their divorce and separation, financial matters and/or arrangements for their children. The parties decide what issues they want to discuss with the assistance of the mediator, a neutral third party, whose role is to facilitate (not dictate) the discussions. 

Agreements reached at mediation can be formalised and recorded in written documents, but they are not binding unless and until they are recorded in an order sealed by the court. Once parties have reached an agreement, they can take legal advice in respect of the same, and specialist family mediation solicitors can draft and submit the necessary order.

The mediator can give legal information, but not legal advice. We therefore recommend that each party takes some legal advice alongside the mediation process. At Moore Barlow our family law team are trained in mediation and collaborative approaches so that they can come to the best decision to suit you.

Can I be forced to go to mediation? 

In short – no. Mediation is a voluntary process and simply will not be effective if one (or both) parties are not willing to engage. As each party will deal with the breakdown of the relationship at their own pace, it might be that one needs more time than the other before they feel ready to attend mediation with or without the help of a family mediation solicitor.

However, if one party decides to make an application to the court (whether in respect of financial matters or arrangements for children), the court will expect them to have considered mediation. In most cases, the court will require the applicant to have attended a mediation information assessment meeting (a “MIAM”) and will not allow the court application to proceed without a MIAM certificate.

Further, the objective of the Surrey Initiative is to increase the use of out-of-court dispute resolution (“DR”) processes (including mediation). As a result of the Initiative, the court may increasingly stay/adjourn proceedings to enable the parties to engage in (or explore the possibility of engaging) in DR processes. There may well be cost consequences for a party who unreasonably refuses to engage in a DR process, so it may be useful to seek out family court mediation near you. 

Do I have to sit in the same room as my ex at mediation?

Not necessarily. In recent times, mediation sessions have increasingly been held virtually (as a result of the coronavirus pandemic). This can be helpful where parties are no longer geographically close.

Aside from pandemic-related restrictions, “shuttle mediation” can be used so that parties are not in the same room. This is where the parties attend the same building, but have separate rooms and the mediator “shuttles” between them to assist with discussions and, hopefully, reaching an agreement. Shuttle mediation is useful where there has been domestic abuse within the relationship, where one party feels intimidated by the other, and/or where the acrimony runs so high that the parties cannot be in the same room together. 

What is the cost of family law mediation?

Mediation often proves far cheaper than court proceedings. Of course, the likely fees involved in both family mediation and court proceedings will depend on a number of factors and are estimated on a case-by-case basis.  

At Moore Barlow, we offer a range of hourly rates and some fixed fees for your individual meetings with mediators. Joint sessions are charged at our hourly rate per couple (so, if you agree to share the mediator’s costs equally, you pay for time charged at half of our mediators’ hourly rates each). The total cost of mediation will therefore depend on how many sessions the parties need. 

By comparison, during court proceedings, the court’s timetable must be adhered to. This means that certain documents must be provided by the ordered dates and hearings must be attended. Where solicitors are instructed, their time will be charged for preparing the necessary documents, reviewing those received from the other party, and preparing for hearings. This can prove a substantial amount of work. Further, family law solicitors usually instruct barristers to represent clients in court, which involves additional fees. 

What if I want my “day in court”?

As explained at 2 above – except in limited circumstances, the court will expect you to have considered family mediation and for you to produce a “MIAM” certificate in order for the application to proceed. 

However, some cases are not suitable for family mediation. Sometimes mediation proves unsuccessful, and the parties become involved in court proceedings in any event. It might be that a case therefore somewhat inevitably comes before the court, but we would encourage parties not to dismiss family mediation without considering the significant benefits it offers over court – generally, mediation is cheaper, quicker, and less stressful.

Moore Barlow’s mediation services

You can find out more about Moore Barlow’s mediation services, in order to organise the assistance of a trained mediator or seek out the help of a family law solicitor who specialises in dispute resolution.

If you would like to speak to one of our solicitors about mediation, or anything else relating to relationship breakdown, please contact our family team, who will be very happy to assist.