Mediation is a way of resolving issues which arise following the breakdown of a relationship, including where those involved have been married and are divorcing, or where a cohabitation relationship has broken down (including a same sex relationship).
Mediation can be used to resolve financial issues arising from the breakdown of the relationship, arrangements for children, improving communication between the separated couple and so forth. It is distinct of course from marriage guidance and marriage counselling, which is designed to patch up the relationship and result in a reconciliation.
Over the past few years mediation has become an increasingly popular alternative to the often traumatic and costly process of having such disputes resolved by the Courts.
For some time it has been compulsory for those people who have issues to resolve, following marriage or relationship breakdown and who are eligible for Public Funding (previously known as Legal Aid), to attend a preliminary intake meeting with a mediator, so that an assessment can be made as to whether or not their case is suitable for mediation. The Government is now favouring an approach which will mean that in every case, whether or not the parties are eligible for Public Funding, it will be compulsory for them to attend, either individually or together, a mediation intake meeting. At present, however, mediation is a voluntary process and can only take place if both parties are willing to enter into it.
There will still be certain cases where mediation will be considered inappropriate, for example where there is a particular emotional or power imbalance in the relationship or, in certain circumstances, where there has been domestic violence or where there is a threat that domestic violence may take place.
Mediation involves the parties working with a trained mediator (and sometimes co-mediators) who will assist them in reaching an agreement in relation to the issues which they need to resolve. It is very much a teamwork approach; and one of the basic differences between the Court approach and the mediation approach is that going through the Court process means that the Court will decide the issues for the parties whereas in mediation it is not the mediator who makes decisions but the parties themselves.
Mediators are frequently Solicitors who have undergone specific and intensive mediation training. The process may involve several mediation meetings over a period of a few months. Generally speaking the mediation process is quicker as well as being cheaper in terms of costs than taking the Court route.
Although the mediator may be a lawyer/mediator, legal advice cannot be provided by the mediator during the course of the mediation. The mediators function encompasses providing information; assisting the parties in defining the issues which need to be resolved; explaining to the parties the various options that exist in resolving those issues; and generally managing the process. If an agreement is reached in mediation, then the mediator will prepare a written mediation summary recording the agreement reached, and the parties will take the summary to their respective Solicitors and obtain legal advice with a view to implementing the terms of the agreement.
The Law governing both marital and cohabitation breakdown is a complicated area these days, particularly having regard to recent landmark Court decisions involving, for example, the enforceability of pre-nuptial and post-nuptial agreements and the resolution of financial issues, and as a result it is important to know the best way of tackling such issues. Contact our experienced Family Law Solicitors, Collaborative Lawyers and our Lawyer/Mediator today to talk through and investigate what options are available.