What is family mediation and when is it appropriate?

Family mediation is a voluntary process in which a couple or family members agree to the appointment of a neutral third party (the mediator). This can happen whether or not they are legally represented at any time and regardless of whether there have been any legal proceedings.

The mediator acts even-handedly, conducting the process in an impartial way. They have no authority to make any decisions with regard to separation, divorce, children issues, property and finances, or any other issues that may be brought by the participants. A mediator should help them reach their own informed decisions by facilitating their discussions and negotiations together and without adjudication.

There are several different forms of family mediation, all of which are helpful in different circumstances, but essentially, mediation is used to try to resolve both financial matters and children issues. It can also be used to discuss cohabitation agreements and prenuptial agreements.

The different forms of mediation are as follows:

1. Mediation with clients in the same room (no solicitors present)

Mediation takes place either with the couple together in the same room as the mediator or on the same screen if the mediation is held remotely.

This is a useful way to try to resolve financial and/or children matters where there is a certain level of trust between the couple and where there is some communication and a willingness to resolve matters as fairly as possible on both sides. Everything will be shared between the couple and the mediator and no confidences will be kept by the mediator.

2. Co-mediation

This can be particularly powerful when the couple has a difficult/high-conflict relationship or deep-rooted psychological issues or complex children issues. There will be two mediators working alongside each other, with one dealing primarily with the therapeutic aspects and the other dealing mainly with the more practical and financial arrangements. This enables both the legal and the emotional dimensions of the couple’s situation to be dealt with simultaneously. It can offer additional support and can help to ensure that emotional issues, or the couple’s relationship or behavioural patterns, do not derail the mediation. It can be utilised to counter issues that may arise where there is a significant power imbalance either in behaviour or financial awareness or emotional awareness or vulnerability.

3. Shuttle mediation

This is a good way of mediating where perhaps there has been a history of domestic abuse or power imbalance between the couple or where the couple simply are not able to sit together in the same room or be on the same screen.

The mediator will shuttle between the clients in their separate rooms/on separate screens and will be able to hold confidences with each of them, agreeing with each of them what exactly can be mentioned to the other. Whilst it can take a little bit longer to get to an overall resolution, it can be very effective in reaching a settlement where the couple cannot be together or relations are very strained, or with one perceiving the other to be more controlling, for instance.

4. Lawyer-assisted/supported mediation

This builds on shuttle mediation as outlined above. It is a useful way of proceeding when the couple wish to have their respective solicitors with them so that they can take immediate advice and have support on hand whilst going through the mediation.

The mediator is still impartial and works to build trust with each client and their representatives and shuttles between the two clients and their respective solicitors in separate rooms. Confidences can be held and, in that way, the mediator can help everyone try to reach an overall agreement.

5. Child-inclusive mediation

This is where the parents are in mediation and where their children can be seen by a specially trained mediator who is able to see children. Children who are aged 10 and over can be seen in this forum. It is helpful as it gives the children the opportunity to have a voice. After the child has spoken with the mediator, which will take place with the child separately (without the parents present), and if the child agrees, feedback is given to the parents which can help them to make the right decisions for their children arrangements going forward. It is good for the children as they have a confidential space in which to speak freely with the mediator and so can voice any anxieties or concerns that they have which might otherwise not be understood by their parents and this can help the parents in turn to do what is right for their family as a whole.

Family mediations generally take place over a number of sessions arranged at the couple’s convenience, usually lasting 90 minutes. All mediation relating to financial matters ensures that discussions take place with disclosure of all financial matters. Costs are usually shared between the couple and the sessions are (save for safeguarding and certain other exceptions) totally confidential.

Following the mediation, the couple’s lawyers will usually assist to create a draft order to reflect the solutions discussed in mediation. This will be sent to the court for approval.

If you have any questions or concerns about mediation or any other family query, please contact Emma Harte (Solicitor and Mediator) or Teresa Cullen (Solicitor, Mediator, and Psychodynamic Psychotherapist specialising in couples and relationships work).