Family mediation is a voluntary, confidential and privileged form of alternative dispute resolution. It involves the appointment of a neutral and impartial third party (the mediator) who helps the parties reach a negotiated solution to their dispute. The mediator does not have any authority to impose a decision on the parties. Instead, the mediator helps to facilitate discussion between them, identifies potential solutions and assists the parties to reach their own informed decisions. The parties retain control over whether or not to settle the dispute and on what terms.
What is family mediation?
Family mediation is commonly used by couples who are married, in a civil partnership or cohabiting to resolve disputes relating to:
- Separation
- Divorce or dissolution of civil partnership
- Property and financial matters
- Children, including contact, residence and financial arrangements
Other family members can also use family mediation. For example, where a dispute concerns a child, depending on the nature of the dispute and the child’s age and maturity, the child can also participate in the mediation process, if the parties agree.
Family mediation does not replace the need for the parties to take independent legal advice on the terms of any agreement that may be reached during the process. Neither does mediation exclude the involvement of lawyers. It is however common for the parties to attend family mediation without their lawyers and to take legal advice outside of the process.
Encouragement of ADR including mediation
In recent years there has been a shift towards encouraging the use of ADR and specifically mediation in family disputes. For example:
- Judges have encouraged parties to proceedings to engage in ADR and can penalise a party in costs if they refuse to do so.
- On 26 March 2021, the Ministry of Justice introduced a Family Mediation Voucher Scheme, which offers £500 towards the costs of mediation in eligible cases, further incentivising parties to utilise mediation as a starting point in family disputes. You would need to check with your mediator as to whether they are able to offer this when you first contact them as not all mediators are part of this Scheme.
The scheme has been extended to continue in its present form until 2025. Data about the scheme suggests couples reach partial or full agreement and it is the government’s intention to introduce a permanent scheme.
- The Family Courts are broadly of the view that family mediation should be the norm rather than heading straight into the litigation process.
- The Ministry of Justice is considering whether to introduce “cost shifting or fees” to actively discourage certain private law family cases from going to court. The measures are being considered to discourage parties that are already using mediation and close to an agreement, from turning to courts in cases where the outcome would be more favourable.
Making mediation central to private law family disputes
One of several changes that are being proposed by the government is making it mandatory that the parties need to have made a reasonable attempt at mediation before proceedings can be issued unless an exemption applies. The roles of cost orders to make parties accountable for not attending mediation and increasing court fees for issuing an application are also part of the measures being considered as part of the emphasis on the importance of mediation in a dispute.
Types of Family Mediation
There are three different types of family mediation:
Sole mediation
This is the most common form of family mediation. It involves the instruction of a single family mediator to moderate and facilitates dialogue between the parties. As sole mediation involves the instruction of a single mediator, it is cost-effective and can be quick and convenient to schedule several meetings. The disadvantage of sole mediation is that the process may break down if an issue arises that is outside the scope of the mediator’s expertise. Alternatively, additional costs may be incurred if it is necessary for the parties to jointly instruct a third-party expert to assist with resolving such an issue.
Co-mediation
Co-mediation involves the instruction of two mediators who work together in the mediation process. There is no set way in which co-mediators work together. Some co-mediators work alongside one another, whereas others choose to divide their functions. For example, one mediator may focus on facilitating discussion between the parties, while the other takes notes. How co-mediators function will often depend on the parties’ needs and the nature of the dispute.
Co-mediators can be from the same or different disciplines or backgrounds. For example, a solicitor mediator may co-mediate with a specialist from a counseling or therapeutic background in a dispute involving a child. Alternatively, a solicitor mediator may co-mediate with a mediator who has a financial or accountancy background in a dispute about complex financial matters. Combining knowledge and expertise in this way can be an effective tool in resolving a dispute. There is also less chance of an issue that is outside of the scope of both mediators’ expertise arising during mediation.
Worth mentioning, co-mediators also benefit from discussing matters with one another outside of the co-mediation process. They can therefore draw on the benefit of each other’s expertise to resolve the dispute, which gives co-mediation a greater prospect of success. Co-mediators do however need to be able to work together and draw on each other’s skills and expertise effectively. This is critical to the success of co-mediation. If co-mediators disagree on an issue and are unable to manage this within the process, they may simply serve to polarise the parties.
The use of two mediators can also address any power or gender imbalance that may exist between the parties. It can however be difficult to persuade a party to engage in co-mediation rather than sole mediation. The use of two mediators increases the cost of the process. The parties may feel that one experienced mediator will be sufficient to help them to resolve the dispute, without the additional costs of a second mediator. Co-ordinating the diaries of two mediators in addition to the parties’ diaries can also cause delays in scheduling sessions and progressing the mediation.
Anchor mediation
Anchor mediation combines the benefits of both sole meditation and co-mediation. It involves part of the mediation process being undertaken by a sole mediator and other parts being undertaken in co-mediation. The process is referred to as anchor mediation as the sole mediator is the anchor, with co-mediation being undertaken when necessary. There is no set way in which anchor mediation operates. Some anchor mediation may begin with both mediators, with one or other mediator leaving the process permanently or temporarily. Alternatively, anchor mediation may begin with a sole mediator who introduces a second mediator as and when the need arises in response to developments in the mediation process.
Anchor mediation is appropriate where:
- An issue arises that is outside the knowledge or expertise of a sole mediator.
- A power imbalance arises between the parties during the mediation process, where for example one party may attempt to dominate the other.
- The relationship between the parties is strained and difficult to manage. The anchor mediator may require additional input to manage and facilitate effective discussion between the parties and to prevent the mediation process breaking down.
Bringing a second mediator into the mediation at a later stage can sometimes be problematic. The anchor mediator will need to explain and justify the additional costs that will be incurred by introducing another mediator. Some parties may not see the benefit of bringing another mediator into the process or may not agree due to cost considerations.
Additional costs can also be incurred by the second mediator requiring time to familiarise himself with the issues in dispute and the dynamic between the parties. Introducing a second mediator part way through the process can also change the dynamic of the process. It can be difficult for a mediator coming into the mediation at a later stage to establish a rapport with both parties.
Roles in family mediation
Mediator
The mediator’s role is that of an impartial third party who facilitates communication and discussion between the parties. The mediator also manages the mediation process by:
- Making administrative arrangements, such as supplying a neutral venue for the sessions and providing documentation for completion by the parties.
- Chairing each session and moderating communication. The mediator ensures that discussion between the parties does not become one sided or unbalanced.
- Setting ground rules and ensuring they are complied with. For example, part of the mediator’s role is to prevent abusive and inappropriate language and behaviour between the parties.
- Helping the parties manage their time and discussions productively and constructively. The mediator is responsible for ensuring that the agenda is followed.
- Identifying, developing, suggesting and exploring options when the parties reach an impasse in discussions.
- Reality testing options which have been identified as possible solutions to the dispute.
- Helping the parties find the best option available to resolve the dispute.
The mediator is not a decision maker and while the mediator can provide information to both parties during the process, he will not provide legal advice. For example, a solicitor mediator can provide information about the law which may assist the parties to make decisions in the mediation process, such as explaining how the court would deal with a particular issue, but he cannot make a recommendation or give an opinion about a particular option or course of action.
Following the mediation process, the mediator is responsible for producing documentation (see Steps to take after mediation).
Parties
The parties retain control over all aspects of decision making, both inside and outside the mediation process. For example, the parties are responsible for selecting a suitable mediator, setting the agenda for each session and the pace at which the mediation progresses. The parties are at the heart of the mediation process and are responsible for making decisions about options and possible solutions.
It is critical to the success of mediation that each party expresses their goals and objectives at the start of the process. They must also identify and express their needs and interests. All parties must participate actively in the sessions from the outset and be ready to consider and make decisions about the options which are explored and suggested.
The parties are also responsible for payment of the mediator’s fees, unless they are eligible for public funding (Legal Aid).
Lawyers
It is common for parties to be referred to a mediator by their lawyer if, after an initial consideration of the issues, mediation is identified as a suitable dispute resolution process. Once mediation begins, it is usual for lawyers to provide input and advice, outside the mediation process. A lawyer’s input can involve any of the following:
- Helping a party assess the strengths and weaknesses of options discussed in mediation.
- Advising on the viability and enforceability of potential settlement options.
- Evaluating the legal implications of a proposed course of action.
- Assisting a party to identify specific needs, interests and issues to be met or addressed in the mediation process.
- Exploring resolution with a party based on their interests, rather than arguing the best legal case based on rights.
- Managing a party’s expectations.
- Helping a party understand complex legal or technical issues, which may be beyond the mediator’s expertise.
- Identifying options for a party to take back and discuss in mediation.
Mediation does not exclude the involvement of lawyers within the mediation process. It is however usual for the parties to attend family mediation without lawyers present. The involvement of lawyers in family mediation is the exception rather than the norm, although some mediation schemes do actively involve lawyers in the process.
Where mediation proceeds without lawyers, it is possible for the mediator to invite the parties’ lawyers into the final mediation session. This can be beneficial where the lawyers have reservations about the terms of the proposed agreement reached.
For information about the role of lawyers following mediation, see Steps to take after mediation (part 3 of this article).
