Mediation isn’t the right choice for every couple. In some circumstances mediation would clearly be unsuitable – if one party has made allegations of domestic violence or abuse against the other, for example. A couple at loggerheads, going through a rancorous split and barely able to be in the same room together, are also unlikely to benefit from mediation.

For the process to have any chance of working, each party must be willing to set aside confrontation and be open to compromise if necessary. A determination to ‘win’ the divorce does not mix well with mediation.

But let’s start at the beginning….

What is mediation?

Mediation is guided negotiation, intended to help couples who are struggling to reach an agreement between themselves and need help doing so. It is important to note that mediation does not concern itself with the details of the relationship – it is not counselling.

Instead, it is focused on purely practical concerns. The parties discuss the details of their pending divorce and try to agree on how their assets – their money and property – should be divided before they go their separate ways. Mediation can also address arrangements for children: where they will live for example, how much time they will spend with the other parent, and how much child support that other parent will pay.

Typically, mediation involves meeting in person but this is not essential to the process. The sessions are guided by a professional mediator who will be on neither person’s side but instead encourage the estranged couple to find common ground.

The government has been keen to promote mediation as a relatively low-cost alternative to family court for a number of years now. There is a variable fee for attending sessions but legal aid is available for people on a low income, and a time-limited voucher scheme was also launched earlier this year, providing a £500 discount on the cost of mediation to eligible individuals.

Anyone planning to take action in a family court must show that they have first attended an introductory meeting to explore whether or not mediation might be suitable for them, in the particular circumstances in which they find themselves. This is called a ‘mediation information assessment meeting’ or MIAM. There is usually a fee of £120 for these, although this charge can also vary.

If the mediation goes well and agreements are reached, the participants receive a document setting out the details. This is not legally binding but it can be converted into a ‘consent order’ (a legal order concerning finances), which will be binding once it has been approved by a court.

The potential for speed and the comparatively low costs are the two key advantages of mediation. But there are drawbacks too.

The disadvantages of mediation

Qualified mediators are not solicitors and do not receive legal training. Most will have some understanding of the fundamentals of divorce law but they will not be able to provide any legal advice to people undergoing mediation. This means that either side of the estranged couple could settle for less than they are entitled to, or, through a lack of awareness, create other problems for themselves further down the line – for example, leaving the door open for fresh financial claims by their former partner in the future.

This is why mediation as an alternative to legal advice can be a false economy. If there are meaningful assets at stake then it makes a lot of sense to protect your own interests and ensure every possibility and angle is properly explored. A solicitor will be able to help ensure you have addressed all the potential legal complications and that you receive the settlement to which you are entitled. Such expertise could be worth much more than the money saved by mediation.

There are also other ways of avoiding courtroom confrontation with more legal force than mediation. Arbitration or collaborative law may be a better choice for some divorcing couples. Ask an expert family solicitor for advice.

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Many couples who are facing the prospect of a divorce or separation believe that it is the legalities of the situation that need to be managed and resolved.  People going through separation are aware that they may be feeling a number of emotions, with sadness, anxiety or anger being common, but there is often an attempt to stifle such feelings in order to get on with the practicalities of ending the relationship.

However, humans are by their very nature creatures with emotion and a divorce or separation is not just legal, it is emotional also.  If these emotions are not managed both sensitively and appropriately it can have a very negative impact on the legal actions and decisions required.

Many divorcing couples struggle to stay focused at a time when they are being asked to make important decisions about their lives and their futures.  What is required at this time is solutions and not increased conflict and animosity.  The collaborative law process is an option which gives all of this.

Collaborative law is designed to help those going through a divorce or separation to take positive steps towards reaching agreement whilst maintaining relationships.  The process involves decisions being made at meetings where collaboratively trained lawyers and the couple attend.  During the meetings, the couples are listened to and supported and encouraged to communicate their priorities and fears.  The likeminded collaborative lawyers will hep the couple to actively seek creative solutions that work for them and their family.  The information provided by the lawyers is given in an open and transparent way to ensure the interests of the couple are prioritised and upheld.  In addition to the lawyers, the collaborative process can involve third parties such as family consultants or financial neutrals to help the couple manage the emotional and financial issues that arise.  They too work as a team with the lawyers and the couple and are committed to problem solving and achieving unique outcomes for the family as a whole.

Divorce and separation can be a difficult and painful experience; however collaborative law helps alleviate the pain and ensures that emotions do not threaten to exacerbate the legal actions and decisions that need to be taken.

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