The benefits of Family mediation…

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Published on Sunday, 26 February 2012 21:40

Last Updated on 26 February 2012

Adele Theron

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Between 32-55% of marriages end in divorce. Although this statistic is pretty dreadful, it’s a sad reality about marriages today.

The actual process of separating and divorcing is relatively straightforward, and it is possible for a couple to complete the task themselves without professional help, for a small sum of money in court fees. However, VERY few couples manage to do this, because they are scared, they don’t understand the process or they don’t know what the Courts will require, and their relationship can be highly emotional, lacking in trust or a battleground.

To protect themselves, most couples turn to solicitors in the hope of getting as good a deal as they can. Solicitors are not allowed to act for both sides, as they are obliged to act in their clients’ best interests and there would be a conflict of interests. Therefore, the separating couple has to use two separate sets of lawyers, and the bills soon mount up. Most family solicitors are very good at what they do and work collaboratively – there are however some who think that going to court should really only be a last resort.

A major shake-up of the family court procedures in England and Wales comes into effect on 6 April 2011. All divorcing and separating couples will be referred to mediation to try and settle any disputes before being allowed to go to court.

The move towards mediation was given further impetus when, in 1999, Lord Woolf produced his important report called “Access to Justice”. It set out a number of shortcomings he found in the current legal system. Amongst other things, he found it to be:-

> Too expensive

> Too complicated

> Too adversarial

> Too slow

Lord Woolf suggested family mediation an appropriate cases as a way to overcome these shortcomings.

Family mediation is an alternative to lengthy and expensive court proceedings so if you must divorce, this is the smoothest way to go about it!

In a divorce or separation, an independent mediator will assist the parties to reach agreement about arrangements regarding children and money.

You should note though that mediation is not a forum to attempt reconciliation.

Quicker and cheaper

The United Kingdom government hopes that this plan will reduce the number of divorces which are dealt with by the courts.

Its assumption is that problems are often best resolved via discussion and agreement.

In addition to saving court time and expense, it will provide people with a quicker, cheaper and more harmonious way of dealing with disputes.

The rules make it obligatory to consider mediation by attending a Mediation Information and Assessment Meeting.

But they do not make it compulsory to actually commit to the process thereafter.

The new rules will not apply if there has been domestic violence within the last 12 months or if there are child protection issues.

What is a mediator, how does mediation work, and in what way is mediation a good alternative to the traditional route to divorce?

A mediator is an independent and neutral facilitator, who is able to talk to both sides and who works for the benefit of the whole family. As there is just one mediator, he or she will have a clear idea of the feelings, wishes, hopes and fears of both parties.

Although both parties can choose to have their lawyers present, it’s not necessary. As the agreement can be reached amicably, there does not need to be two lawyers sending demanding letters to each other. The process is therefore quicker, less expensive and less aggressive. This last point is particularly important where children are involved, because the parents will have a continuing relationship for as long as they both are providing parental care.

The mediator will gather all the relevant financial information and, by using use his or her knowledge and negotiating skills, try to draw the two sides together into a sensible, fair and practical agreement that will be acceptable to both of them and to the Courts.

This may mean moving them from their entrenched positions (typically “She’s not getting her hands on my pension” and “If he thinks I’m going to move out of this house, he can think again”), to whatever solution is in the best interest of the family.

How does mediation work?

The mediation process is non-binding; neither party is required to accept the mediator’s proposed agreement.

The parties to a mediation may or may not have an attorney present; attorneys are advisors and not participants in the mediation process.

Although mediation is informal, the process is fairly well defined. Here is a brief discussion of a typical mediation process:

The mediator begins by welcoming the parties and introducing himself/herself. The mediator then outlines the process and the roles of the mediator, the parties, and attorneys (if present). The mediator ends the introduction by explaining the ground rules for the process.
The mediator then asks for statements from each party. Both parties have an opportunity for a brief statement, from their viewpoint.
The mediator may ask clarifying questions, but typically the parties do not question each other.
After both parties have spoken, the mediator may ask more questions, both to clarify the issues and to provide the other party with greater understanding.
At this point, the mediator may ask the parties to move into private sessions (separate for the purpose of discussion). The mediator talks with each party, proposing solutions, trying out scenarios, trying to get commitment to a settlement by both parties. The mediator goes back and forth between the parties during this time, clearing up misunderstandings, and carrying information, proposals, and points of agreement.
The mediator works to find points of agreement between the parties, in an effort to reach an agreement. At some point, the mediator may pose a final agreement for the parties and urge them to accept.

The family mediator then takes all the information and puts into a consent order or Separation Agreement, which clients are very strongly encouraged to take the deed to solicitors for an independent check that the document is correct – for the client’s protection, as well as mine.