Family disputes present a host of challenges to the parties and any children involved, not the least of which can involve emotional distress and financial hardship. The added stress of undergoing court proceedings has been cited by potential clients as a deterrent to engaging a family lawyer to represent their interests as reaching a resolution through the courts can be a costly, lengthy and adversarial endeavour.
What appears to not always be clear to clients is that it is not necessary to go to court. In fact, by not going through court or arbitration, you retain greater control of the outcome of your case. There are a number of non-court resolution methods, which are collectively known as Alternative Dispute Resolution or ADR. One such method is mediation.
Mediation is a client-centred, voluntary process whereby an objective third party assists parties in reaching a resolution between themselves by facilitating discussions at a series of meetings. The discussions that clients have in mediation are generally also confidential. Importantly, during what is often already a very trying time, it can help alleviate tensions by removing the ‘threat’ of court action. This can be of particular benefit to cases where children are involved.
There are some common misconceptions or misunderstandings as to what mediation is – the mediation ‘myths’ or ‘misnomers’. Here, we address some of the most common and provide some insight into resolving disputes via mediation.
Myth: Mediation is the right option for me because I want to cut costs and this is a quicker, cheaper way to be done with it all.
Fact: It can be true that overall legal fees are lower compared with raising court proceedings. If both parties are committed to and engage with the process, matters have the potential, for example, to be resolved in 3-5 sessions of 1.5-2 hours in length. This does avoid court costs, which can be substantial. Legal fees then tend to be restricted to taking advice from a solicitor on the discussions and proposals made in mediation.
Mediators do however typically charge hourly rates. Mediation is not about making important decisions quickly and on-the-cheap; it is about reaching a resolution in an amicable manner that is in the best interests of all parties, assisted by a professional. How long this takes and how successful it is, and therefore how much it costs, depends on how the parties interact with the process.
Myth: Our mediator is our lawyer.
Fact: Mediators do not provide legal advice or represent the interests of either party. Instead, they facilitate discussions between the parties to help them identify and resolve their issues. They can give you information about the family law process, but cannot give either of you legal advice. Having a mediator who is also a family solicitor can be very helpful as they are very experienced at dealing with family matters and can provide legal information. The mediator maintains a neutral role, however, even if they are also a family lawyer.
Myth: My case could never be suitable for mediation; I don’t need to know anything about it.
Fact: Since 6 April 2011, the courts now require that parties attend a Mediation Information and Assessment Meeting (MIAM) prior to raising court proceedings where child arrangements or financial disputes are involved. This was put on statutory footing in April, 2014 as part of the Children and Families Act 2014 and is subject to certain exemptions. Every case must therefore demonstrate that mediation has been considered and the court must be satisfied where parties choose not to pursue it.
Myth: But I’ve had a MIAM in the past, surely I don’t need to know any more about mediation…
Fact: A signed FM1 or the signed MIAM certificate on the Court application form is only valid for four months. Therefore, if after four months, no further action has been taken or a resolution reached, you must attend another MIAM.
Myth: Mediation won’t work for us because I can’t be in the same room as that person!
Fact: If it’s too difficult to be in the same room but you would like to resolve matters using mediation, shuttle mediation is an option where each party is in a different room and the mediator ‘shuttles’ between rooms.
While mediation is not suitable for all disputes, there is wider scope for it being a suitable method of resolving disputes than seems to be commonly understood. More than this there is much more freedom to find creative ways to resolve disputes with the help and guidance of an experienced mediator – it’s all down to you, the clients: your input at your pace to produce your outcome.