January is considered (at least according to popular mythology) to be one of the busiest months of the year for family lawyers, as the fallout from the emotional and financial pressures of the festive period takes its toll on already strained marriages and civil partnerships. Cue the trite depiction of family lawyers revelling in the prospect of "Divorce Day" and "Blue Monday" bringing a flurry of new clients, all ready to slug it out in court. Fortunately, the reality is not nearly so depressing. Whilst there is no escaping the fact that many relationships do seem to break down given the additional pressures of this time of year, it is also true that people are increasingly resolving to navigate the process of separation in a more constructive way, away from the courtroom – by seeking alternatives such as family mediation.
What is family mediation?
An accredited family mediator will work with a separated couple to help them resolve some or all issues arising from the breakdown of their relationship. Mediation can take place in person or remotely, and with both parties in the same or separate locations, depending on the needs and circumstances of those involved. During the mediation sessions, the mediator will help parties to focus on communicating more effectively with one another and to identify common ground. Information is shared with the mediator and discussed during the mediation sessions with the aim of reaching an agreement.
Although mediation is viewed as an alternative to litigating , the mediator's role is not to decide the matters in dispute as a judge or sheriff would do. Rather, the mediator will encourage and facilitate constructive dialogue between the parties and help them to explore possible solutions. Mediation can be used to resolve a wide variety of issues, including financial matters arising from a separation and issues around the care and upbringing of children.
Why choose mediation?
Mediation has an overwhelmingly high success rate, with "success" occurring when parties reach an agreed resolution. Arguably in mediation the process of reaching a resolution is just as important, if not more so, than the resolution itself. As the ethos of mediation is rooted in respectful dialogue and improving communication, it can be particularly useful for those couples who need to maintain a relationship with one another going forward – for example, to continue to co-parent young children.
Mediation affords a level of flexibility which simply doesn’t exist in the court process. Sessions can take place at times and in locations to suit the parties. In mediation, the parties determine the scope of matters to be discussed and can be actively involved in the process, enabling them to take ownership of the outcome.
In an increasingly difficult financial climate, mediation may provide a more cost-effective option and could lead to parties reaching a final resolution more quickly – certainly when compared to litigation, where parties are at the mercy of the court's resources and scheduling. Confidentiality and privacy are often very important in family cases too, particularly where business interests are concerned. In contrast to court proceedings, which are usually accessible to the public, mediation is a private process. Matters discussed in mediation are generally kept confidential and are not to be referred to outside of mediation unless the parties agree.
Where do lawyers fit in?
Opting for mediation instead of court proceedings or lawyer led negotiation does not mean that the law is disregarded. Both parties may be advised throughout the mediation process by their respective lawyers, who can provide input on any proposals or offers made. If agreement is reached at mediation, the terms of that agreement can be included in a legally binding contract, known as a Minute of Agreement, which is prepared by parties' lawyers upon the successful conclusion of mediation.
Many family law mediators are also specialist family lawyers. The mediator will not provide legal advice to the parties, but their knowledge of the law and the legal process around separation, divorce and dissolution of civil partnership enables them to bring that insight to the discussion and to help parties to identify the issues to be resolved.
Can couples be forced to mediate?
Ultimately, no. Mediation is a voluntary process in which both parties must be willing to engage. That requires both parties commit to the process, to move past their resentment of one another, and to want to reach a mutually acceptable resolution. However mandatory mediation is being introduced for certain actions raised in the English family courts, and the provisions of the Children (Scotland) Act 2020 lay a foundation for piloting court mandated mediation in Scotland.
But it is important to make clear that mediation will not be mandated in all circumstances. For example, mediation will not be appropriate where there is a history of domestic violence or where there is a risk that one party may try to use the mediation process to control, abuse or intimidate the other. Ultimately, the success or otherwise of mediation will be dependent on both parties' ability and willingness to engage meaningfully in the process.
At Brodies family law team, we regularly advise clients who are undertaking mediation and have accredited family law mediators in every office.
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