Questions about Family Mediation

Before making an application to court relating to child or financial issues, there is a legal requirement that you attend a Mediation Information & Assessment Meeting (known as a MIAM). The idea is that 'considering mediation' as an option is a good thing. The MIAM must be with a family mediator accredited by the Family Mediation Council, which we are. At the MIAM you and the mediator will discuss your situation and the issues arising. Part of the meeting is used to assess whether mediation might be a suitable forum in which to help move matters forwards.

If at the end of the meeting you do not wish to take the mediation process further, the mediator will, upon request, supply you with a form to prove that you have attended the MIAM. This is often referred to as the MIAM Certificate.

There is currently no legal obligation for people to actually mediate, but upon receiving your court application and at a first hearing the court will consider whether mediation might be a helpful step to take and may encourage you to do so. Presently, it is only the person making the application to court (usually known as the 'applicant') who has to attend a MIAM.

Yes. On average, family mediation is four to five times less expensive than using solicitors to work out a settlement. Where mediation becomes so valuable is in its ability to help people speak directly to one another. Often the clear and direct approach in mediation is more effective than weeks of lengthy communication between solicitors. The latter may create added tension and unnecessary confusion for clients and almost certainly adds to the cost of their separation.

We do encourage participants in mediation to obtain independent legal advice during the mediation process as this is not something the mediator can give. You can then consider the advice as a helpful addition to the mediation process and something that will assist you in reaching a settlement.

The main issues which people like to discuss in mediation concerning their children are:

• Where the children will live?
• How they will spend time with both of their parents and extended family?
• What is fair with regards to holiday time?
• Special days – birthdays, Christmas, Easter, religious holidays, Mothering Sunday and Father's Day.
• How to communicate effectively – texts/WhatsApp/Email/phone?
• Financial support for the children.
• Would it be a good idea for the children to meet with the mediator?

The above is not an exhaustive list and each topic is rich for discussion. At Rathbone Family Mediation, our mediators are trained in speaking with children (Child Inclusive Mediation) and have many hundreds of hours' experience in delivering the CAFCASS-run Separated Parenting Information Programme (SPIP).

Mediation outcomes are documented, although with regards to child arrangements are not legally binding or 'set in stone'. We are also able to provide a more detailed account of child proposals by way of a Parenting Plan.

Most people wishing to discuss money and property do so in the context of divorce proceedings or with a view to separating.

You will hear the term 'financial disclosure' used by the mediator and this part of the mediation process is really important to get right. Before any decisions can be made about how you choose to separate your finances, you both need to know what there is. This includes exchanging supporting documents.

You will be asked to prepare details relating to your assets (what you own including any items in joint names), liabilities (debts), income details and some figures for predicted future income and outgoings.

This means:

• Making a list of all the money you usually earn or receive over a given period of time (weekly, monthly, etc).
• Making a reasonable estimate of what you would expect to have to pay for in the future including housing.
• Providing details of any property, savings, shares, insurance policies, pension rights and other capital assets in which either of you have an interest.
• Identifying loans and debts for which either of you are liable.

Using this information, you will be helped to negotiate on such matters as:

• ‍The Family Home – who should live there, should it be sold and, if so, when and how should the money be divided? (In the case of a rented home, should the tenancy be changed or transferred?)
• ‍Other property – what will happen to investment properties and holiday homes?
• ‍Pensions – will these be shared or their value offset against other assets?
• ‍Possessions – how should these be shared between you?
• ‍Debts – how will these be dealt with?

Most people in mediation spend time discussing:

• What is 'fair' (which may not necessarily mean a 50/50 split). You are unlikely to hold the same views on this, at least at the outset, and the word 'fair' can mean many different things to different people. Mediation is used to explore this important concept.
• What is realistic? Reality testing at this point can be very effective.
• What best meets the needs of all members of the family, particularly the children?
• How might your circumstances be expected to change in the future?

As most people wish for their proposals to be made either legally binding via a Financial Consent Order or some form of Separation Agreement, you can see how important it is to get this part of mediation right.

Your discussions in mediation are confidential unless you jointly agree that information should be disclosed or unless the mediator is worried that someone will come to harm.

If an allegation is made that someone (particularly a child) is at risk of harm, we have a duty to contact the appropriate authorities. We may also be required to disclose information with regard to the commission of any relevant, previously undisclosed, criminal offence.

The mediation sessions are also legally privileged, which means that what you say during mediation cannot later be used in Court as evidence.

We will ask each of you to agree that all discussions during mediation take place only in an attempt to reach a settlement and are on the basis that they are both confidential and will not be referred to in evidence in any court proceedings or sworn statement about the same issue. But facts disclosed during mediation are regarded as open.

Any facts provided by either of you during mediation about financial matters will need to be verified with supporting documents. Although these will be strictly confidential, they may be used subsequently in court. Normally these are documented by the mediator in an Open Financial Statement. If an agreement is not reached, they can be used by a solicitor as a basis for further discussions.

If your children are seen in mediation their session is also private and confidential unless the mediator is worried that someone will come to harm. Normal feedback received from your children to the mediator will only be given to you in accordance with their wishes.

This is a commonly asked question which is tricky to answer with any certainty. It depends on what you need to sort out and how well you and the other person are able to work together. In your MIAM, the mediator will give you an indication of likely session numbers. Generally speaking, we would say the following:

• Child-only issues (parenting arrangements, special days, holidays, communication): 1-3 joint meetings.
• Financial and property issues only: 3-4 joint meetings.
• All-issues (child and financial issues): 4-6 joint meetings.

Each joint meeting will last for up to 1.5 hours.

We offer parents the opportunity for their children to be involved (known as Child-Inclusive Mediation or CIM). For more information please speak to your mediator. If you wish the mediator to see your children and the children agree, that meeting will take up to an hour and the mediator will need a commitment from you both to receive your children’s feedback.

For more information please talk to your mediator.

The mediator has a number of different roles to play during a mediation session. These include:

• Facilitating your mediation sessions – helping to create an environment which encourages the exchange of information, ideas and views in a constructive way so that you can progress towards joint decision-making.
• Establishing a safe space where both participants feel able to speak openly about the issues that have brought them to mediation. This might be in a way which is not possible outside of mediation. This includes establishing certain boundaries at the outset. Whilst the mediator will not tell either person what to do, they are able to flag up and react to behaviours which are not conducive to the mediation process such as aggressive, abusive or controlling behaviour from one participant to the other.

• Helping you to hear what the other person has said to you. When in conflict or disagreement we often find it hard to 'hear' what is being said to us – we're so fixated on saying our piece or speaking our mind that we don't bother to listen to anybody else. The mediator uses 'active listening' skills to reflect back what has been said so that both participants have a sense of being heard and understood. It is also a chance for any misunderstandings to be clarified.
• Interpreting what has been said in a way which aims to defuse or take away the sting of unhelpful words or phrases. By reframing the situation and moving away from naming, blaming and shaming, the mediator will help parties focus on the real issues. The aim is to encourage them to attack the problem rather than each other.
• Giving you positive examples of how other people in similar situations deal with such issues. Sometimes it can be helpful to get a sense that the difficulties and challenges you face can be overcome – that there is some light at the end of the tunnel.
• Documenting your proposals. For participants who are divorcing and who wish for the court to issue a financial consent order, the mediator will draft a Memorandum of Understanding which captures the main points and the essence of what has been agreed. This can then be used by a family solicitor to draft the court order.

It is important to note that the mediator has no power to impose a settlement. Full responsibility for all decisions remains with the participants at all times.

Additionally, whilst the mediator is an expert and may also be solicitor, they cannot give advice and must remain impartial at all times. You are encouraged to seek independent legal advice at some point during the mediation process, particularly if discussing financial decisions and certainly prior to finalising any agreed proposals.

Family Mediation can help you work out a number of different issues. These include:

• Division of property upon divorce or separation, pensions and finances.
• Arrangements relating to the children such as contact, residency, sorting out levels of child support maintenance and parental responsibility.
• Issues concerning communication between parents.
• Extended family arrangements (eg how other members of the family such as grandparents spend time with the children).