This blog post is intended to help couples in conflict who are curious about the role and benefits of mediation in divorce. After reading this, you will understand how mediation can help you with child and financial matters, what family mediation does and doesn’t do and roughly speaking how much it should cost. We have also included some useful resources to help parents minimise the effects of separation on their children - as doing so can be life-changing.
What is mediation in divorce?
Family Mediation is an out of Court dispute resolution option supported by an impartial third-party, the mediator who helps the participants communicate better and to reach their own informed decisions about some or all the issues on separation.
For example, the timing of the divorce, arrangements for the children, what should happen to the family home – should it be sold or transferred to one party? Sorting out division of other assets like pension investments and savings and how to sort out debts. These are just a few examples; each case is bespoke, and the parties will decide jointly on what issues need to be discussed and resolved within mediation by agreeing an agenda/ framework to work from. Mediation can also be described as “assisted negotiation”.
On the 6th of April 2011, the Government issued a pre action protocol that requires anyone wishing to issue an application in the family courts to attend a mediation awareness session - Mediation Information and Assessment Meeting, better known as a ‘MIAM’ before they consider issuing a court application. This protocol is in place to encourage more people to stay out of court and in control of their destiny when it is safe and suitable to mediate.
There are exceptions to this rule in cases where there is evidence of domestic violence/ abuse or child protection issues, in which case exemptions will apply.
You cannot be forced to mediate; it is a voluntary process. If your case is suitable for mediation and you and your ex-partner are both willing to mediate, then the matter can go ahead via the mediation forum. Mediation can be stopped at any time by the participants or the mediator if it is considered an abuse of process or becomes too overwhelming and/ or the emotions become unmanageable.
Mediation is a confidential and a legally privileged process, allowing the participants to have open and frank discussions with each other, in a safe and supported environment, without fear that they will be bound by solutions that either party may propose within the mediation forum. It’s an opportunity to be creative and think ‘outside the box’ to reach bespoke resolutions. The mediator does not have any decision making or sanction making powers, the decision-making rests solely with the participants.
As the mediator in your case, I will bring to the virtual mediation table over 27 years’ professional experience and knowledge as a previously practicing family solicitor to give pragmatic guidance and legal and/ or other relevant information on all aspects of the breakup to help you reach your own informed decisions and resolutions.
Mediators cannot give any legal advice and it is important that the parties do have the benefit of legal advice from independent lawyers. It is usually with the help and support of lawyers that any tentative terms agreed within the mediation forum, can be converted into formal and/ or legally binding Court Orders.
Please refer to the FAQs page on the website for more information and clarification about mediation.
What is the role and purpose of a mediator in divorce?
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:
Define the issues
Identify areas of agreement
Clarify areas of disagreement
Provide pragmatic guidance and legal/ other relevant information
Evaluate options to help you reach agreement upon them and to understand the net impact of the proposals made
What are the benefits of mediation in divorce?
Helps separating couples remain in control of the outcome and process
Communication between the parties can be much improved
Mediation is child and future focused so, supports the parties in letting go of the past or shelving disputes that are no longer serving them or their families to reach pragmatic child-centred resolutions
It is less stressful than going to court
It allows for happier, healthier lives post separation and/ or divorce for the parties, their child/ ren and future generations.
Mediation stops the cycle of dysfunctional families
It costs much less than court proceedings or lawyer led negotiations
Mediation is a quicker process and allows for earlier resolutions; the mediator goes at a pace that suits the participants
The parties can explore and reach agreement on non-legal issues as well as legal rights and responsibilities, like communication difficulties and boundary setting unlike court-based proceedings
Research studies have shown that agreements reached between parties in mediation for divorce are more likely to be maintained than court-imposed orders
Do the children have a voice in mediation?
Yes. There is the opportunity to explore and discuss the benefits of ‘Child Inclusive Mediation’ (CIM) to give the children a voice. It involves a family mediator, who is trained as a child consultant, talking with a child or children as part of the mediation process.
During mediation the mediator, parents, or children may request that they be involved in the mediation process. It is important that parents understand the wishes and feelings of their child or children and involving them in direct consultation may be the appropriate way forward. Children like to be informed and appreciate having options identified for them and their views heard but not to be responsible for the overall decision making.
Involving children in mediation can be complex. A lot of preparation is needed before a mediator speaks to a child. Different considerations apply according to the age and maturity of the child. It is only possible with the consent of both parents and the child or children in question and where the mediator feels it is appropriate considering all the circumstances of the case and family dynamics.
Direct consultation means the child will talk with a mediator in person or by virtual platform separately and in complete confidence from anyone else including the parents (subject of course to the usual safeguarding exceptions).
The mediator may be the same mediator who is dealing with the parents or a different mediator. I am not currently qualified to carry out CIM so will co-work with another mediator who is qualified for CIM.
There are additional costs for this service, for instance the CIM usually charges around £500.00 for this service. In many cases, children wish some of their views to be shared with their parents to aid the decision-making process and this will be relayed with the child's permission. Sometimes the children are unwilling to give their permission to share any information with the parents and in those circumstances their wishes and feelings will be respected.
These consultations last approximately 45 to 60 minutes. Usually, CIM is appropriate for children aged 10 years and above.
Resources to support parents who wish to limit the impact of their separation/ divorce upon their child/ ren
Parents want to put children first when separating, but most parents don't know where to turn to for advice on how to do this. Mediation in divorce can assist with this as the following three resources demonstrate and complement:
Top tips for parents to help them think about issues from their child’s perspective.
The first 2 resources above are from Resolution, an organisation dedicated to the resolution of family conflicts in a constructive way.
The video is a very powerful and insightful tool that expresses a child’s needs during separation and divorce and helps parents focus accordingly.
The separation guide has a wealth of knowledge and relevant information from a wide range of experts who have supported families in conflict during divorce and separation.
These resources steer parents through separation and/ or divorce and help them understand that there is a better way to sort out child arrangements that will be less damaging and toxic both to them and their children like the use of family mediation in divorce.
The third resource: ‘top tips’ contains informative and impactful insights from children. These tips were devised by members of The Family Justice Young People’s Board. The members are children and young people with experience of family law proceedings having been the subject of their parents’ applications to court for a Child Arrangements Order. They know first-hand what it feels like to experience family breakup and divorce and what it feels like to be caught up in adult/ parental conflict and court proceedings.
The above three resources are invaluable to parents facing family breakup. They help and support parents to be child-centred when considering arrangements for their child/ ren to limit the adverse impact and damage that separation can cause them.
What is the cost of mediation in divorce compared to going to court?
There is a fixed fee of £125.00 (no VAT) for the initial assessment meeting - Mediation Information and Assessment Meeting, better known as a ‘MIAM’. This will include the signed form(s) that parties may need to file a court application if they decide to go to court and/ or if mediation is unsuccessful or breaks down.
Mediation sessions are usually booked for 90 minutes. The cost is £187.50 for each party based on an hourly rate of £250.00. The cost of mediation is usually shared equally or as per the agreement between the parties. There is the option to book a half day or full day session where it is considered necessary and appropriate.
Additional charges will be incurred for preparation of interim outcome summaries, reviewing financial disclosure and preparing outcome documents, if needed i.e., Open Financial Summary (OFS), Memorandum of Understanding (MOU) and Parenting Plan. This is based on the hourly rate of £250.00. Please see our services page for fixed fee prices depending on the complexity and net value of your assets.
This may appear expensive, but the cost of family mediation is a lot cheaper than both you and your ex-partner paying lawyers to negotiate mutually acceptable terms on your behalf or going to court. The hourly cost to each party for an experienced senior lawyer will be on average £225.00 to £300.00 plus VAT. The cost estimate from a law firm for an all-issues case will be circa £25,000.00 to £30,000.00 plus VAT each (possibly more, for a complex matter with significant assets).
Mediation costs for an all-issues case will be no more than around £2,000.00 to £2,250.00 each based on 5 to 6 mediation sessions including the additional work that will need to be undertaken pre and post sessions. Charges are always fully discussed before meditation starts and you will be given an estimate of costs based on your circumstances. Mediation could save couples in conflict up to 90% in legal costs.
The emotional costs that will be saved is priceless. By taking the mediation option, it is less stressful than going to court and a much quicker process. Mediators go at a pace that suits the participants who remain in control of the outcomes and decision making.
“Sushma initially helped me a few years ago to resolve my marital breakup, due to her professional understanding with incredible mediation ability she was able to procure amicable resolution between myself and ex-partner. To this day we maintain a strong healthy family bond which I am convinced is solely down to Sushma’s sympathetic warm-hearted approach toward helping my family to thrive even after the marriage had broken down. Subsequently I have recommended Sushma to friends who have also benefited remaining thankful to her for her assistance and intervention during difficult times. I would always encourage anyone requiring help to firstly contact Sushma she will always offer sound professional compassionate advice; she’s a top woman!”
What are the main stages of family mediation in divorce and how do you start the mediation process?
1. Mediation referral
If mediation is considered a suitable option to help resolve issues or a ‘MIAM certificate’ (the signed relevant page of the family law application form that you wish to proceed with) is needed to file a court application, an online referral form must be completed and submitted to start the mediation process and to provide key data on a confidential basis.
The referral can be made by one of the parties lawyers completing and submitting the lawyer referral form online or a mediation referral can be made by one of the parties themselves by completing and submitting a self-referral form online. Upon receipt of a referral form, the parties are invited to book and pay for the initial separate assessment meeting/ MIAM online.
2. MIAM - Mediation Information and Assessment Meeting
Under current Family Proceedings Rules there is a pre-court action protocol that directs parties (unless exempt from attending a MIAM) to attend an initial assessment meeting/ MIAM with a mediator before filing a family law application.
The MIAM is an initial separate assessment meeting where the mediator assesses if mediation is a safe and suitable option for the parties to resolve their disputes. It takes around 45 – 60 minutes and is conducted by a virtual meeting via Zoom for a fixed price of £125.00.
The participants must complete and submit an initial mediation information form in advance of the meeting confirming key facts and relevant background information for the mediator to consider and review prior to the meeting.
At the MIAM the mediator will find out more about the circumstances of the family breakup and issues that need to be resolved. They will give guidance on the various dispute resolution options available to resolve family disputes outside the court forum like collaborative practice, arbitration and lawyer led negotiation as set out here in a flow chart, published by Resolution.
The mediator will carry out a safety screening exercise to establish if mediation is a safe and suitable forum to resolve issues. If not suitable for family mediation, the participants can consider and review the other options discussed to enable them to decide how best to proceed with their case.
The requisite signed document (‘MIAM certificate’) will be issued electronically to the participants or their lawyers if not suitable or mediation breaks down/ fails to resolve all issues to attach to any proposed court application to evidence the pre-action protocol has been followed prior to issuing a court application.
3. Substantive Mediation
If mediation is suitable and both parties are willing to mediate, a joint 90-minute Zoom meeting will be scheduled on a mutually convenient date and time upon purchase of the first joint mediation session at a cost of £187.50 per party.
Participants will receive an electronic starter pack (via email) 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 to review in preparation of the first mediation and future sessions.
If the parties are exploring financial issues, Form E with guidance notes on how to complete the form will also be included as part of the electronic pack in readiness for mutual exchange in due course on a date to be agreed.
Form Es and supporting financial documents will be exchanged via a shared Dropbox account to allow for safe and secure exchange of sensitive information. This task will not need to be undertaken if the parties already have or are working towards an agreed schedule of assets, income and liabilities, with exchange of Form Es having taken place via their lawyers.
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 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 the:
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.
These combined documents prove to be invaluable for the purposes of securing legal advice from lawyers on the terms tentatively agreed and converting them into legally binding orders.
Occasionally, parties may request the preparation of a ‘Parenting Plan’ that sets out the arrangements agreed for the child or children of the family to formalise the arrangements; this is not a legally binding document but is a statement that sets out the parties’ joint commitment and hopes for how to parent together.
Parenting plans do not hold evidential weight in any future court proceedings; it is a voluntary document that records parental aspirations, plans and arrangements. If you need help, please get in touch or book a FREE Discovery Call and see our mediation service page here which will walk you through how I work and can help and support you, in easy to understand, bite-sized chunks.