First, let's talk about how family mediation works:
In most cases, one of the couple will get in touch with a mediator who will then discuss the process and assess whether the case is suitable for mediation.
There are core steps that will be addressed in a mediation meeting:
• The first step of mediation is to figure out what the couple want to discuss and resolve.
• Second, is to talk through ways to come to an amicable solution that pleases both parties
• Try to consider the other person's view, even if you may not agree with them at first and be willing to compromise
• Try to come to a mutually acceptable outcome
During the mediation meeting, it is essential that the mediator controls the physical setting, so that no party feels in any way threatened, or in a way that makes them feel as if they cannot voice their thoughts and opinions. The mediator will first give an opening statement that both confirms the mediator's neutrality and outlines the roles and responsibilities of each partner. Once this has been established, they will move into defining the protocol, guidelines and address the matters the couple have brought to light. In the simplest terms, mediation may be thought of as "assisted negotiation."
Ensuring that both parties understand the fundamental rules is incredibly important. These rules outline what the parties can and cannot do and they also help the mediation meeting run smoothly.
In some cases, attorneys may be present in the meeting. If they are, they cannot intervene with clients in regard to their decision-making. They are however, allowed to confer. It will also be made clear that both parties should remain civil and not interrupt each other. It is the mediator's responsibility to ensure that both clients’ opinions are heard and respected.
There are a few common misconceptions that surround family mediation, and it's important to address these and understand what the responsibilities of the mediator actually are.
A Family Mediator is Not...
1. A Therapist
Some people think that the mediator act as a therapist. The mediator will focus his/her attention on identifying the matters which the couple want to resolve. Once this has been achieved, they will move onto ways they can help the family in the present and the future.
Although many mediators do have counseling qualifications that may help in certain social situations, it is not appropriate in the mediation room.
2. Used for Reconciliation
Another misconception is that mediators will be able to help bring a couple back together. This is not the case. The mediator's role is to help improve communication between separated or separating couples.
It may be that the separated couple seek to mend their relationship in a way that's amicable for the betterment of their children's lives. In this event, the mediator may help or suggest other forms of counseling and support and signpost the couple to other professionals who can assist.
3. A Substitute for Legal Advice
While many mediators are trained to offer legal advice to their clients, they cannot offer or advise it during a mediation meeting. This is a job for your lawyer. It may be that the mediator is also a qualified lawyer, but again, these skills won't be used in the mediation meeting although a lawyer mediator can explain the law to a couple. Knowing the law can be beneficial to a couple because the mediator will know what matters you need to cover and what is possible or not possible from a legal perspective. Offering legal advice, as such, would go against the mediator's duty to act as an impartial facilitator between the couple. Family mediators won't focus all their energy on the legal solutions to your concerns. What they will do, is focus on what matters to the family.
In court, the judge is ultimately the decider of the family's fate. A mediator allows the family to be completely involved in the process and the decision-making. Mediation opens options that would not be readily available in a court room, which allows you to make decisions based on what you believe is right for your family. A judge, in contrast, may not make use of this knowledge.
5. Legally Binding
Lastly, one of the biggest confusions that comes with family mediation is that it's legally binding. This is not the case. In fact, most discussions in mediation are confidential and cannot be called upon in any legal proceedings. This means that you do not have to worry about committing to something that may not be suited to your needs further down the line. Once your mediation session has concluded, your mediator will prepare some documentation for your lawyers who will then put your wishes into a legally binding format. How is Family Mediation Different to Other Options? Family mediation offers a more informal alternative to other methods such as going through lawyers, attending court and involving other third-party services. Family mediation recognises that you are the expert when it comes to your family. This means that you have the final say regarding the important decisions.
The main difference with family mediation is that, opposed to going through lawyers, you are encouraged to speak directly to each other. This allows both of you to voice your thoughts and feelings directly, providing a platform to explain what is most important to you. It also allows you to address the most important aspects concerning your family that may not be easy to explain - in a more personal context, at least – to a lawyer. If successful, it is also quicker and cheaper.
Laura Ward from Family Law Partners – a specialist law firm dealing exclusively with Family Law in Brighton. They have extensive experience in family law issues and advise a range of clients across the UK.