Family Mediation is an out-of-court dispute resolution option in which, an impartial third-party, the mediator helps those involved in family breakup to communicate better with one another, be future focused and make their own informed decisions.
Mediation helps participants stay in control and out of court (where it is assessed as safe and suitable to mediate) to reach their own agreements about some or all issues regarding their separation, divorce, children, finances and property.
As well as non-legal issues that are often more pressing like boundary setting and how to communicate better moving forwards.
Family mediation can also be described as “assisted negotiation.”
4 core key principles of family mediation:
Parties come to mediation by choice – it is a voluntary process (the court cannot order mediation but often there is judicial encouragement to mediate where there are no extenuating circumstances).
Mediation is a confidential process (except for in certain conditions like, if the mediator is alerted to a vulnerable adult or child being at imminent risk of danger).
It is for the parties to make decisions about their issues- mediators are not arbitrators or judges.
The mediator will act in an even-handed way between the parties to help them reach an outcome that works for all those involved
How does mediation work?
1. Mediation referral
Either the lawyer or client makes a referral to initiate the process. For my mediation service everything is carried out virtually and online so, an online referral form will need to be submitted via the website (‘self-referral’ form, if client submits and ‘lawyer referral’ form, if lawyer submits) - the parties are then invited to book and pay for their virtual (Zoom) initial separate assessment meeting/MIAM -Mediation Information and Assessment Meeting via the services page on the website. Currently at a cost of £125 each.
2. MIAM - Mediation Information and Assessment Meeting
The Family Mediation Council has endorsed a set of documents governing mediators’ conduct of MIAMs that came into effect on 1 October 2022.
MIAMs must now be undertaken separately and not offered on a joint basis in a uniform and concise manner with the expectation that the session will last a minimum of 45 to 60 minutes.
At this first separate meeting, the mediator will provide a detailed explanation of the key principles of mediation and explain how family mediation works in practice. Additional dispute resolution options will also be explored such as arbitration, private FDR meetings and child inclusive mediation (where relevant).
A main component of the MIAM is to understand what issues need to be resolved, gathering of key information from the participants and carrying out a risk assessment to ensure that it is safe and appropriate to mediate.
On the 6th of April 2011, the Government issued a pre action protocol that required anyone wishing to issue an application in the family courts in the UK to attend a MIAM. There are exceptions where there is evidence of severe domestic violence or child protection issues/welfare concerns, in which case exemptions may apply.
At the end of the MIAM, participants should leave the session with a full knowledge of the core principles of family mediation, how it works in practice as well as other relevant dispute resolution options.
Mediators should also share additional tools and resources on a bespoke basis to support participants through their separation and/or divorce journey depending on their individual needs and circumstances as well as to make clear what steps are to be taken next depending on the outcome of their assessment.
3. Substantive Mediation
If mediation is suitable and both parties are willing to mediate, a joint 90-minute session will be scheduled on a mutually convenient date and time upon purchase of the first joint mediation session- currently at a cost of £187.50 each.
Participants will receive an electronic starter pack upon making the purchase consisting of the Agreement to Mediate contract that must be signed and returned committing to the key principles of mediation and rules for successful online mediation, as well as other key documents and information to review in preparation of the first mediation and future sessions.
At the outset of the first session the parties will agree an agenda for mediation as a framework to work within, but this is not set in stone and can be updated with any other issues that may arise during the divorce and mediation process.
4. Preparation of key outcome documents
If mediation is successful in sorting a financial settlement and the parties can reach mutually acceptable resolutions, the mediator may be asked to prepare two key documents known as:
I. Open Financial Summary (OFS) and
II. Memorandum of Understanding (MOU)
The OFS is a document setting out on an open basis, a summary of the party’s respective financial positions as disclosed in their Form Es with a list of the financial documents exchanged between them. This will need to be signed and dated by both parties once finalised and agreed.
The MOU is a privileged document setting out on a without prejudice basis, a summary of the terms of agreement reached within the mediation process. This document will be signed and dated by the mediator alone as a record of what took place in mediation.
However, in practice, as preparation of these documents can be very time consuming and adds additional costs, the parties often don’t request these documents. They rely on interim without prejudice summaries and spreadsheets (for finances) that have been prepared throughout the process to share with their lawyers (and other professional strictly on a confidential basis) to take legal and other advice and to help convert any tentative agreements into legally binding orders.
Occasionally, parties may request the preparation of a ‘Parenting Plan’ (PP) that sets out the arrangements agreed in mediation for their child/ren to formalise the arrangements; this is not a legally binding document but is a statement that sets out their joint commitment and hopes for how to parent together. Again, this is very rare, as participants are encouraged to draft their own PP with the free online PP template on Cafcass’ website.
What is the role of a mediator in substantive joint session?
The mediator’s purpose and role is to facilitate, support and provide a safe space within which the separating and/ or divorcing couple can discuss and explore issues arising out of their separation and/ or divorce.
The mediator empowers and inspires participants to make their own informed decisions and to stay in control of the outcomes as opposed to giving up the decision-making power to a judge or bench of magistrates who have no affinity with them or their children.
During the mediation process the mediator will help to:
Define the issues
Identify areas of agreement
Clarify areas of disagreement
Provide pragmatic guidance and legal/ other relevant information
Evaluate options to help parties reach agreement upon them and to understand the net impact of any proposals made and agreed
What is holistic family mediation and divorce?
Holistic family mediation and divorce considers and helps couples in conflict to focus not just on their legal rights and responsibilities but also on the bigger picture - the impact on them and their family - on their mental, physical and emotional health and wellbeing. Read my blog on 'What's a Holistic Divorce?' to find out more.
Holistic mediation and divorce encourages and supports parties to take time to pause, take a breath and reflect inwards - to heal. A holistic service helps those facing family breakup to not just survive but to go on and thrive after separation and/ or divorce.
If you are curious about how holistic family mediation can help support you and your family through separation and/or divorce, you may wish to consider our FAQs page and/or book in a Free Discovery Call via are services page.
If you are ready to get the ball rolling, please complete and submit a Self-Referral Form and book your initial separate Mediation Information & Assessment Meeting (MIAM) online. We will then get in touch with your ex-partner (unless requested to hold off any communication at this stage) to encourage them to engage in the process highlighting the benefits of family mediation - low cost, staying in control and to have a quicker resolution compared to court based proceedings.