Splitting up: Mediation and Family Law
Mediation can be a practical way to hold a conversation with an ex-partner about something that needs discussion. If relations are raw and heated, face-to-face disagreements can revisit old rows and betrayals. This makes it very difficult to find compromise and agreement. In my experience, discussions about children can be the most heated of all.
Solicitors discuss using mediation before considering the need to start a Court process. Many mediators, like myself, are practicing solicitors too, so we bring a high level of legal knowledge to a dispute as well as mediation skills. For any readers interested, I describe the connection between law and mediation in a publication to which I was invited to contribute following lectures at the University of London[1].
If there are issues of domestic abuse, mediation might not be advised because both parties need to disagree and negotiate without fear of repercussions. Mediation is voluntary although Courts require parties to consider it before starting Court proceedings. Whilst a mediated agreement will save a lot of time and legal costs, it is not always possible, especially if there are issues of abuse, addiction, mental health problems or one party is particularly unreasonable or has a wish to litigate.
Mediation is not counselling or reconciliation, or to explore old dynamics. Rather, it can offer meetings to provide an effective mechanism to air issues and search for agreement on practical matters for the future. I have found that even when people seem to be miles apart, the differences may not be as great as they first appeared. Mediation can assist by keeping the focus on practical issues and solving joint problems, avoiding drifting into past hurts and anger.
You might have already tried to have conversations about apparently easy or innocuous issues, such as dates for holidays, or sharing items from the home, and found it is hard to get a simple matter agreed. More involved matters such as sharing the assets of the relationship or fundamental disagreements as to where children should live are even harder to tackle if relations are not calm.
A mediator’s first step is to talk to both people, with some separate time for each, to explain the process and see if they would be happy to use mediation. If the situation is very fraught, it is possible for parties not to have direct conversations, but to hold discussions through the mediator instead. This can be in separate rooms, or the use of zoom or skype technology.
If you agree on arrangements for children, a shared written record is prepared. It does not usually have to go through the Court process unless it began in Court. Mediated financial divorce agreements need to go through Court to become binding, and this is usually something that can be done through an on-line process through your solicitor.
If you have any questions to ask about this article or any other articles in previous
months, please contact me at [email protected].
[1] Samia Bano editor: Gender and Justice in Family Law Disputes, Women, Mediation and Family Law Disputes
