Insights

Exploring Mediation in Family Mediation Week

20/01/2023

Kate Stovold highlights the process, its advantages and use.

In my ten years of practice, I have witnessed an increasing popularity in Alternative Dispute Resolution (ADR), and rightly so. Court, in my view, is the last resort. I am therefore pleased to engage with and support campaigns such as Family Mediation Week (16 – 20 January 2023). It is also a great pleasure and privilege to have completed my training as an all-issues mediator with Resolution.

For me, it is refreshing when a client openly expresses a wish to avoid Court. There is an opportunity to be seized and I think it falls to lawyers to signpost their clients appropriately. It is well-documented that Court applications face delays, last-minute cancellations, unreliable judicial continuity etc. If, through mediation, parties can strike while the iron is hot, every effort must follow to facilitate the referral and expediently.

Mediation is voluntary with the onus on participants to commit to the process and the opportunity it presents for collaborative problem solving without apportionment of blame. If the participants engage with an open mind, an ability to listen and hear each other, and a willingness to resolve their issues, it should be beneficial. Open and honest dialogue promotes improved communication and provides a future-focussed resolution, particularly with the safety net of the confidential nature of the process (subject to safeguarding concerns) throughout which the mediator must remain neutral as to outcome.

That open engagement should be enhanced by the knowledge that mediation is conducted without prejudice to legal proceedings. With the exception of financial disclosure, the detail of the conversations cannot be disclosed. Hopefully, that widens the scope for negotiation and compromise.

The ultimate authority in mediation rests with the participants; an opportunity for them to retain ownership of the process and, most importantly, the decisions being made about their family. It is my experience that clients, when committing to financial or child arrangements, are more likely to honour them in the long term if the decision was theirs at the outset. Mediation, as a process, promotes empowerment – letting the participants know that they can take control of the decision-making. The hope is a win-win outcome reflecting compromise and flexibility.

It will be helpful for participants to know that the mediator must act even-handedly and impartially. Acting fairly and with integrity is also important, with mechanisms in place to ensure confidentiality. That provides a safe space for constructive dialogue.

Participants to mediation have a right to seek independent legal advice, and that must be explained to them. Appointing a solicitor is a personal choice and just as a client should feel comfortable in the mediation process, so they should feel comfortable with their solicitor. On all fronts, a client should feel understood and confident that their objectives are understood.

Knowing that multiple issues can be discussed and decided in mediation is likely to attract more couples to the process. That multifaceted approach allows participants to resolve all issues arising upon relationship breakdown. As child arrangements impact on financial arrangements and vice versa, that serves to enhance the effectiveness of the process. The individuality of the family unit is respected.

If mediating child arrangements, families will benefit if they prioritise the needs of the children and, where age appropriate, their wishes and feelings. That a child aged 10 or older can meet with the mediator, subject to safeguards and the mediator being qualified to see the child, may enhance the family’s experience.

On separation, it is not uncommon for parents to worry about its impact on the child(ren). Where parents wish to minimise that impact, and agree this as a priority, that can form part of the mediation agenda.

It is that agenda, in broader terms, that affords participants a bespoke service and one that is tailored to their specific requirements: seeking to reduce conflict, ensuring continued stability for children, financial arrangements or prioritising emotional health.   Hence the importance of the individual meetings, an information gathering exercise at the outset of the process, during which the meditator will learn the participant’s priorities and objectives and identify any concerns.

To discuss any family law matter with Kate, please contact her via email ([email protected]) or telephone (07917 015631).

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