Published on October 2nd, 2015 | by Parenting Solo0
Mediation during divorce – is it worth it?
Divorcing or separating and wondering about mediation? Do you need it? Do you want it? Is it worth it? Our expert Anita Shepherd spills the beans on how mediation could help you and your former partner successfully navigate your divorce.
How does Divorce Mediation Work?
Deciding to separate from your spouse can be difficult enough without having to get involved in stressful and costly legal disputes. Attending mediation early on in the separation can give you both a better chance of resolving any differences that you have, and with much less cost, time and stress involved than you would have to deal with in court proceedings.
So what exactly is mediation?
Family mediation is a voluntary and confidential form of alternative dispute resolution.
An impartial mediator is appointed to help you and your spouse figure out solutions to issues. While they cannot impose a decision or provide legal advice, they can help with the following:
Identifying potential solutions
Assisting both parties to reach informed decisions
You and your partner will retain control over all aspects of decision making, both inside and outside of the mediation process.
The mediator will ask questions and summarise conversations to better understand disputes as well as your respective interests and priorities.
They may encourage you to discuss emotional issues unconsciously blocking your path to resolution. They will help to refocus and bring you back to the issues in dispute, facilitating discussion and using techniques to help you move beyond any deadlock.
Your mediator will then work to develop a joint problem solving approach to help you identify and explore possible settlement options. Each decision should be evaluated by both parties, with the mediator helping to test out how each option will work. Participation in all sessions is necessary, as is being ready to consider and decide on suggested options.
The mediator will also help you deal with financial disclosure, preparing an open statement setting out your financial circumstances when all relevant information and documents are gathered.
You can either get in direct contact with a mediator or be referred to a mediator or mediation service by your lawyer or another professional third party.
Is it the only support I will need?
Mediation does not replace the need for independent legal advice on the terms of any agreement reached. Nor does it exclude the involvement of lawyers.
It is common for separating parties to attend family mediation without lawyers and to take legal advice outside or alongside the process.
Is mediation obligatory?
It is compulsory to attend a Mediation Information and Assessment Meeting (MIAM) before making a formal court application to address children and financial issues, as courts want evidence that all other possible avenues have been explored beforehand.
What will be the outcomes of mediation?
Mediation can end in any of the following circumstances:
When you reach an agreement on all issues in dispute, the mediator will prepare a without prejudice memorandum of understanding recording both parties’ agreement. This should then be given to your lawyer to give independent legal advice and draft the legal paperwork to give effect to the agreement.
If partial agreement is reached the mediator will record this, together with any progress you have made to narrow the issues in dispute in a memorandum of understanding
You may decide to end or suspend mediation if you want to attempt reconciliation or attend counselling before progressing further. You may also decide to suspend mediation pending the occurrence of a specific event (for example, a child completing exams).
The mediator can conclude the process if they consider it inappropriate to continue because during the course of the sessions, a power imbalance has developed between the parties which cannot be corrected or one party has become abusive towards the mediator or the other party.
Mediation has several advantages to court proceedings, such as speed and saving costs. But most importantly, mediation promotes and advocates healthy outcomes for separating couples as the process assists in preserving relationships, which is vitally important when children are involved in the separation. The outcomes can also be more creative and tailored to your specific needs.
All in all it is a valuable process in addition to obtaining legal advice from a family lawyer specialising in relationship breakdowns.
Anita Shepherd is Head of Family Law at Davis Blank Furniss
Have you had mediation? Did it help? Let us know.