The nuts and bolts of mediation
Mediation offers a forum for the parties to have a discussion and endeavour with the help of the mediator to come to a resolution. It is important that parties are aware of some fundamental principles of mediation which are:
- Confidentiality – mediation is a confidential discussion that cannot be repeated in court or anywhere else. What this enables the parties to do is to have an open discussion about the issues that are important to them without the threat that everything said may be repeated to a Judge if their case ends up going to court. The parties can of course tell their solicitors what is said in mediation. The only time the confidentiality rule can be overridden is in the event a child may be at risk of harm or indeed if one of the parties may be at risk.
- Voluntary nature – mediation is an entirely voluntary process. There is a misconception that parties have to attend mediation. This most likely results from the requirement that if an application to the court is required, then in most cases the applicant has to attend a MIAM (Mediation Information and Assessment Meeting). The purpose of a MIAM is to assess whether mediation might be appropriate and to invite the other party to attend. If the latter chooses not to attend, then the mediator will sign the MIAM form, and the party can then proceed with their application to the court.
- Impartiality – the mediator is entirely impartial. This means that they are not rooting for one party over the other. The parties generally will have their own solicitor on the sidelines advising them. It is not the mediator’s role to advise or to be too directional, though they can provide information. The mediator’s task is to facilitate a discussion and seek to peel away at an issue to get to the core of the problem.
How does it work? Is it for me?
Divorce mediation can take many forms and needs to be tailored to what the parties’ want, after all it is their process. Normally parties are initially seen separately and thereafter a number of joint sessions follow. The number of sessions again depends on the parties.
Mediation is not for everyone and there may be many reasons why someone might not feel comfortable in a mediation setting. They may feel that they will not be listened to, or be intimidated by the other party, unable to speak out and say what it is they want. They may think that the other party will not make full and frank disclosure of their financial details and therefore the process will be a waste of time. These are all normal concerns. The important issue to remember that mediation is about having a discussion and to try and ward off the polarisation and hostility that can quite easily take over when parties venture down the court route.
Being the architects of your own agreement
If the parties reach an agreement in mediation at the end of the process a Memorandum of Understanding is drawn up by the mediator. This is not a legally binding document. It simply sets out for the parties and their respective solicitors what has been agreed. That agreement has to then be put into a Consent Order for the Court to approve at which point in then becomes binding.