The role of mediation in the divorce process

Many clients who have attended a meeting with a solicitor or done their reading online will have heard about mediation as an option for resolving disputes around divorce or separation.

The government’s strategy for family justice is to require people to attend mediation as a first step before they enter the court system. In this article, as an FMC Accredited Mediator, I will explain a little bit about the mediation process and how it works, and answer some common questions.

What is mediation?

Mediation is a confidential voluntary process by which a neutral third party facilitates discussion between the two clients.

The role of the mediator is not to advise the clients but to help the two of them to discuss any issues arising in relation to, for example, parenting or financial matters. The mediator can, in this context, provide the parties with information, which is not specific to their situation, and ask questions designed to elicit discussion around the specifics.

The mediator can explore outcomes with the clients and look at different options for how to resolve their dispute, using their expertise and experience to do so but without telling the clients what the outcome will be (as doing so would be giving advice).

How does it work?

Mediation for family matters is usually conducted with both clients being present for a joint mediation session with the mediator. Prior to a joint mediation session, however, most mediators (myself included), will ask the clients to complete a questionnaire about their case and attend an intake session. These will be one-to-one, i.e. without the other party present, and are confidential.

During the intake session, the mediator can find out more information about the case, the client can find out about mediation as a process and the mediator can screen to ensure that mediation is appropriate and there are no reasons why mediation could not take place, for example, safeguarding issues.

If the case is appropriate for mediation, the mediator will then see the clients together for 90 minutes at a time.

At the start of the first joint session the clients will need to sign the Agreement to Mediate, which is the terms and conditions for mediation. There might be four or five sessions to resolve issues related to children arrangements, finances and the future of the relationship.

How long will it take?

Mediation is a flexible process. Although the sessions referred to above are usually 90 minutes in length, it is possible to hold shorter or longer sessions to accommodate the clients’ preferences.

Some clients might prefer to just book in a longer session and try to move through the issues. The whole process including some disclosure might take a few months and it can be conducted in parallel with the divorce and children court process.

Can I bring a lawyer in with me?

It is also possible to do “lawyer-supported” mediation, which involves attending mediation with a lawyer present.

The lawyer will be asked to sign the terms and conditions for mediation (the Agreement to Mediate) and can participate in the discussion but the process should still be relatively client-led and the mediator is there to ensure that the clients are each being heard.

Sometimes this is known as “hybrid” mediation as it incorporates aspects of the civil model of mediation (used for resolving non-family and commercial disputes).

What if I don’t even want to be in the same room?

It is also possible to conduct mediation on a “shuttle” basis, whereby the clients are in separate rooms and the mediator shuttles between them.

The downside of shuttle mediation is that it can take longer for progress to be made because part of the benefit of mediation is the impact of hearing the other party in a way enabled by the mediator.

Is it binding?

The outcome of mediation is always subject to the parties’ solicitors’ advice after mediation and is not automatically binding.

However, a carefully considered outcome mediated with an experienced mediator more often than not is the end of the matter, as the parties have invested so much effort in the process.

If they are taking their solicitor’s advice as they go along – either within or outside the mediation – that will decrease the chances of an outcome collapsing at the end.

Is it expensive?

The time with the mediator is usually charged at their hourly or session rate.

As such, using one professional to help negotiate an outcome is generally less expensive than using two lawyers, or is much less expensive than litigation or many other non-court based dispute resolution routes.

It is generally the “least worst” option in terms of acrimony, expense and time.

Do I have to go to mediation?

It is a cornerstone of the mediation process that it is voluntary.

However, in order to issue a court application, unless you have either been a victim of domestic violence or there is some urgency or hardship would be suffered, you need to have a mediator countersign the court form to confirm that you have had the process explained to you and do not wish to participate.

How do I choose a mediator?

Choosing a mediator is not always easy.

Geography has historically played a part, but since the pandemic it is now relatively common to conduct mediation over Zoom, and indeed some mediators and clients prefer that.

There are also some mediators who have a legal background and others who do not, and perhaps come to the discipline via a therapeutic, advisory or other background.

The Family Mediation Council (FMC) runs an accreditation scheme whereby mediators submit examples of their work and case studies for assessment, although accreditation is not necessary and there are many good mediators who  are not FMC accredited.

However, most mediators will have a website and will offer a free initial discussion about the process and how it works.

Are there any things that can’t be mediated?

It is generally possible to mediate almost any issue in the context of divorce, financial arrangements and parenting, apart from taking children into care and other public law issues.

Where a case involves serious violence or a significant power imbalance or communication issues, mediating may not be appropriate.

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 About Peter Burgess

Peter is one of the two founding partners at Burgess Mee Family Law.

Having trained at top family law firm Withers LLP, Peter founded Burgess Mee with in 2013, where he advises on the full spectrum of family law issues across the firm’s three offices. Peter is also an FMC accredited mediator.