Mediation Myths

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Family law mediation can work for parties even when the matter is complex, factually challenging, and where strong personalities are at play and therefore it is important to debunk the myths and misconceptions to ensure this process method is not overlooked due to a lack of understanding. When mediation works well it allows parties to find a mutually agreeable solution to the matters in issue.

To mark the end of Family Mediation Week I have tackled some common mediation myths below.

One party will not provide financial disclosure voluntarily and therefore mediation will not work

TRUE – as mediation is a dispute resolution process it requires both of you to fully disclose your financial position. It is possible for you both to agree to reduce the amount of financial disclosure to what the court would require but if you do not agree this then the default position is that the financial disclosure process mirrors that which takes place in the court process. If one party is reluctant to provide financial disclosure, then this impasse can often be overcome by the mediator explaining the need for the exchange of financial disclosure, and if it is still not forthcoming then mediation will not be a workable process.

One party is better with financial information and will be at an advantage in mediation

FALSE – in the individual intake meeting with your mediator you should explain this concern. It is the mediator’s job to ensure that discussions and information is provided in mediation in a way that you both understand, and that the mediation process moves at a speed that works for both parties. Further, the mediator can help explain the financial information provided to ensure that everyone in the process has a full understanding. It is recommended that you have legal advice alongside the mediation process and as such the financial information can be shown to your solicitor who can advise you on it and help you with questions you may need to ask about the information provided.

Mediation isn’t an option because court proceedings are underway

FALSE – the mediation process is a voluntary process and can be entered into at any time and it can take place alongside the court process. It is also possible to invoke the court timetable to ensure that there are backstop dates if the mediation process does not unlock the dispute. Whilst delay in litigation is best avoided that does not mean that every effort should not be made to assist parties in reaching settlement outside the court process from both an emotional and costs perspective. It is also possible for the Judge to direct a party to attend a Mediation Information and Assessment Meeting (MIAM) if they have failed to do so before commencing proceedings. Further, a Judge can direct parties to engage in mediation and will be considering such options at every hearing.

The mediator can give us legal advice and tell us what we should do

FALSE – whilst mediators can give legal information, they are not able to give legal advice. Mediators are also not able to determine an issue as a Judge or an Arbitrator are able to do. Mediation is a more nuanced and holistic approach during which the parties are empowered to determine the outcome of their disputes and work to find solutions that will work for their families.  The benefit of parties reaching workable solutions in mediation is that these outcomes are more likely to last which greatly reduces the risk of further disputes in the future because they have been in control of the process and had control of the outcome.

Mediation is cheaper than going to court

TRUE – the majority of mediations are concluded in 3 – 5 sessions, each of which last 90 minutes each which is far more cost effective that court proceedings. Therefore, mediation is a good option for most couples who are separating. However, if you still have doubt, telephone a mediator, talk to them, meet with them on an intake meeting to find out more. Discuss your concerns directly with the mediator and then make your decision. The cost and time benefit, as well as maintaining a working relationship with the other party is important especially if you have children.

My ex-partner has been abusive and so we cannot go to mediation

FALSE – mediators should hold a separate intake meeting with each of you prior to commencing the first joint mediation session to assess whether your matter is suitable for mediation. Domestic abuse does not always prevent mediation taking place, but the mediator needs to be aware of the background to ensure the mediation process is safe for you. If mediation is to proceed it may be by way of ‘shuttle’ mediation where you are in a separate room to your ex-partner and the mediator moves between you both.

Mediation is about Reconciliation

FALSE – mediation is a process designed to help couples reach an agreement about the arrangements for their separation without the need to go through contested court proceedings. It is a form of dispute resolution.

Mediation is a form of counselling

FALSE – while some mediators may come from a counselling or therapeutic background, they are not providing a counselling service within the mediation process. At Family Law Partners we will often work with trusted third parties such as therapists and Family Consultants who may co-mediate with us to allow manage the emotional aspect of the process which in turn allows us to focus on helping you move forward to a settlement, and this can be highly effective.

My family law solicitors can mediate therefore we don’t need a mediator

FALSE – the skill sets, and roles of a family solicitor and mediator are different, and it is not possible for a person acting in one capacity to perform the other role because the obligations to the parties are very different. A family law solicitor’s role is to act for one party and at all times to act in their best interests, this can lead to positional stances being taken. Further, most negotiations undertaken by family law solicitors are done by way of letters, emails and phone calls which minimises the opportunities of parties communicating directly together to cut through the issues. A mediator’s role is to be neutral and solution focused. Further, the confidential nature of the discussions that take place allow parties to make concessions directly and explore options that may not be put forward in the more traditional forums for fear that that concession may impact later court proceedings.

Mediation failed because a comprehensive agreement was not reached

FALSE – mediation may not always help parties reach workable proposals that resolve all matters, but even when it breaks down, more often than not they will have made progress and resolved aspects of the dispute. If the matters in issue are narrowed in mediation, then it has been successful and often the progress made in mediation can then be the catalyst for an overall agreement to be reached in another forum.

I will be at a disadvantage in mediation if I am not the same sex as the mediator due to bias

FALSE – the mediator must act in a neutral and even-handed manner throughout the mediation process and therefore their sex will not lead to them favouring one party over the other. However, if this is a concern for you then talk to your mediator and ask them whether they can facilitate a co-meditation with a member of the opposite sex which allows for gender balance in a mediation.

You can’t apply to court before you’ve tried mediation

FALSE – the protocols require a party to attend a Mediation Information and Assessment Meeting with a mediator before commencing a court application but if after that meeting, at which the process is explained and other options explained, you do not wish to mediate then you are able to issue an application to the court. Further, there are exemptions from the requirement to attend a MIAM, such as domestic violence, child protection concerns, urgency, previous MIAM attendance etc.

Whatever I offer in mediation can be ‘used against me later’

FALSE – mediation is a confidential process and discussions that take place cannot be referred to outside that process. The exception to this is that financial information provided is treated openly and can be referred to in other process methods. Further, if safeguarding issues arise a mediator has a duty to take steps to report the same.

If settlement is reached in mediation, I am legally bound to the outcome

FALSE – mediators assist parties in reaching workable proposals and this is then recorded in a Memorandum of Understanding. To convert this into a legally binding agreement parties are encouraged to seek independent legal advice and often those workable proposals are converted by their solicitors into a legally binding Consent Order which is then lodged at the court for approval and sealing.

Mediation will not work because we are not on amicable terms

FALSE – mediators are equipped with a skill set to help parties manage discussions even in the most fraught circumstances. We are aware that a separation or family dispute can be a stressful time, and this can mean that emotions can run high and people can be reactionary, particularly when the outcome will have long term implications for their lives. The mediator is there to ensure the process is safe for everyone, constructive and future focused. Surprisingly, even the most acrimonious separation can be assisted by mediation and it can even improve relations going forward which benefits everyone, especially any child of the family.

Mediation didn’t work before and it will not work again

FALSE – just because mediation did not work once or earlier in the process does not mean it will not be successful. Often the timing of the mediation is key to its success. This may be because one or both parties are not in the right emotional place to undertake discussions about their separation. Sometimes the passage of time or the unlocking of impasses in other process forums can be enough to change the dynamic to then allow parties to successfully resolve their dispute in mediation. When mediation is successful it can also equip parties with the confidence, knowledge and tools to help them unlock future disputes without the need of third-party support.

My solicitor is not able to take part and support me in the mediation

FALSE – if having your solicitors present in the mediation is important to you, then hybrid mediation might be a good option. Hybrid mediation allows parties to be legally supported in the mediation process and this can help unlock impasses and speed the process as decisions can be made in conjunction with legal advice at the time.

Mediators are not able to mediate during COVID-19 lockdown(s)

FALSE – mediators can assist you and undertake mediation meetings using video platforms. In fact, during the pandemic mediation has proved more popular than ever because of the delays being experienced in the court process caused by the pandemic. Many separating parties are having to remain living together during these lockdowns and this has created the pressing need for many for quick resolutions to allow them to move forward with their lives. Given the current situation, it is likely that mediation will continue to grow in importance in resolving disputes.

Mediation really is a great forum in which to work through disputes and arrive at workable and long-lasting solutions that meet the needs of those taking part. If you have any other questions about mediation and how it works, please do not hesitate to get in contact. At Family Law Partners we have five mediators within our team and one of us will always be on hand to help.

Kate Elliott is head of our award-winning team of specialist family lawyers in Horsham. To speak with Kate, or a member of the Horsham team, about family mediation or any questions you may have around the process, please contact us.

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