What is family mediation?
Mediation is a form of alternative dispute resolution where a family mediator can assist you in reaching a way forward, after you have decided to separate, which works for your family. The mediator is a neutral party, which means that they remain impartial and do not take the side of any person. They listen to both of you and facilitate honest open discussion which will allow you to navigate issues and reach solutions.
In family mediation (whether in Scotland or England), a professionally trained mediator can help you to work out various issues which you may find yourself experiencing following separation from a partner. Mediators will commonly help separated couples reach solutions on a range of issues, from child issues to your family finances after separation. Mediators are often qualified as a family lawyer, and whilst mediation outcomes are not constrained by the legal framework, the mediator can utilise their expertise to inform parties of the parameters in their jurisdiction.
Does family mediation work?
There are a number of benefits to using mediation to resolve issues post-separation such as greater control, flexibility in decision making, confidentiality, mediation is cheaper than litigation and it can preserve relationships or prevent the further breakdown of relationships.
Mediation provides greater control
Unlike other forms of dispute resolution, mediation keeps the decision making within the hands of the mediating parties and does not transfer control to the mediator or any other party. Having autonomy over the decision-making process can lead to a greater sense of satisfaction with the outcome.
Parties are never forced to mediate as it is a voluntary process, meaning any party can opt to stop the mediation process should they wish.
Mediation can provide flexibility in decision making
During mediation, parties have access to a wide range of outcomes which can be tailored to best suit their family, and decisions are not restricted by legal rules. Mediation allows for more creative ideas to be explored, and the mediator can help the mediating parties to recognise solutions that may have been neither obvious at first nor considered in great detail.
If a previous agreement is no longer working, mediation can help to re-address the issue and assist the parties in coming to a new solution. Mediation is therefore an effective tool in navigating decision making as personal circumstances change, for instance, as children grow.
Mediation is a confidential process
Subject to certain specific exceptions, the mediation process is confidential. Confidentiality ensures that discussions and proposals to settle at mediation will not be used in any potential future legal proceedings (with one exception to this being factual financial information and documents exchanged). This may put parties at ease and facilitate open and honest discussions. By creating this 'safe' space, parties have the opportunity to hear what the other truly thinks, and in turn can share their own feelings. Mediation can therefore be an effective forum for addressing and moving forward from emotional issues to a place where solutions are capable of been discussed.
Mediation is cheaper than litigation
Mediation is a more cost-effective process than litigation as it is both cheaper and faster. As mediation typically has a high success rate, by opting to try the process you may in fact prevent the need for action within the courts down the line, a process which may be both emotionally and financially stressful for all involved.
Mediation can preserve relationships
It is often in a separated couple's best interests to resolve issues amicably and in a private manner. This can be especially paramount when children are involved, as each parent will likely have to encounter the other at various points throughout their child's life. Mediation becomes an especially effective tool here as it is preserves relationships and can help to prevent children being adversely affected by their parents' separation. It also allows parents to co-parent successfully which is beneficial to their children The mediation process is typically less stressful, more flexible and parties feel less conflict than when the litigation route is followed. Of course, this is on the basis that are no child protection concerns about either parent. Some mediators are trained to include children in discussions and these Child Inclusive Mediations may assist where children are of a certain age and want to be heard.
What happens during family mediation?
During family mediation the separated couple meet, both individually and together, with a mediator, who is usually a qualified family lawyer, although not necessarily. Separation can be difficult, and if couples struggle to be in the same room, then the process can be adapted so that being together is not necessary. It is possible for family mediation to be conducted virtually, allowing you to remain in the comfort of your home.
Couples can expect to receive information about the mediation process along with some forms requesting some preliminary information which will help your mediator. First individual meetings can be arranged fairly quickly and information about costs will be provided.
Once the first meeting has taken place, and assuming mediation would be beneficial, then the first joint meeting can be arranged. Depending on how that evolves and the issues which are being discussed, further joint meetings can be arranged until mutually acceptable solutions are reached. However, if solutions cannot be reached for any reason, or a party opts out, this does not preclude couples trying mediation in the future.
If solutions are reached during mediation, couples will be provided with written confirmation about their mediated solutions whether they relate to their family finances or their children. However, they are not themselves legally binding. There are no legal consequences for not complying with potential solution discussed in mediation. Normally, parties will take the proposals to their solicitors and thereafter finalise these proposals in a legally binding way.
In Scotland, a solicitor would normally draft a contract (called a 'Minute of Agreement') based on the solutions discussed at mediation assuming both parties agree, or alternatively parties may seek agreed orders in any ongoing court action.
In England and Wales, a solicitor would draft a court order normally known as a Consent Order embodying the solutions. This can be lodged at Court for approval and sealing (subject to Divorce proceedings being issued). If Divorce proceedings are not contemplated, then a Post Nuptial Agreement can be drafted and signed by the parties based on mediated solutions. Where mediated solutions relate to your children there are ways for this to be recorded in a form of Consent Order which can be discussed further with your solicitors.
What does family mediation cost?
Costs can vary and is very much dependent on a number of factors ranging from the particular issues being discussed and how many meetings are required. Many family mediators offer fixed fees for the first meetings and may provide further fixed fees as the process evolves. Some family mediators simply use an hourly rate.
At Morton Fraser we are flexible and offer fixed fee meetings where necessary.
How can Morton Fraser help?
Morton Fraser offers family mediation services to separated couples throughout Scotland, England and Wales. Our mediators can conduct mediation sessions from our Edinburgh and Glasgow offices, and also virtually. Lucia Clark and Karen Wylie are Scots qualified family meditators, and Savita Sharma (who is a Dual Qualified solicitor) is also an English trained family mediator, meaning she's uniquely placed to offer mediation in terms of English law in Scotland.
For more information on our mediation services, or to get in touch with one of our mediators, please see our Family Mediation service page.
The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Morton Fraser LLP accepts no responsibility for the content of any third party website to which this webpage refers. Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority.