What is mediation?
Mediation is where a neutral third party, known as the mediator, will objectively assist the parties to reach a mutually enforceable agreement. It plays a significant role in family law as an alternative dispute resolution (ADR) method, aimed at helping parties to resolve their issues amicably, without the need for litigation. This article will set out how mediation can be used in familial disputes as an alternative to litigation.
When can mediation be used in family disputes?
A solicitor is under a professional obligation to advise a client on ADR, such as mediation. This is as litigation should be the last resort (Paragraph 8, Practice Direction, Pre-Action Conduct and Protocols) due to potentially being a long and costly process for resolving a dispute. It could be a breach of a solicitor’s duty if they fail to advise the client on ADR.
The mediator will help family members to negotiate and communicate to reach mutually enforceable agreements on family matters such as:
- Child custody and visitation
- Child support and spousal maintenance
- Division of property and debts
- Parenting plans
- Divorce or separation
- Reviewing existing financial or child arrangements following a change in circumstances.
The goal of the mediation is to allow family members to privately resolve a dispute whilst trying to preserve the relationship between the parties. This is as family matters are often sensitive, so mediation may be a plausible avenue for settling familial disputes due to the fact it helps to keep the relationship between family members amicable. For example, in child custody hearings it may be in the best interest of the parties to keep the relationship between the parents healthy for the benefit of the child.
Benefits of mediation in family law:
- Less adversarial: promotes cooperation, reducing hostility, especially of importance when children are involved.
- Cost-effective: cheaper than going into court, litigation can be a very long and costly procedure compared to mediation.
- Time-saving: mediation tends to be typically quicker than litigation. The mediator will help the parties to reach a settlement in a more time-efficient manner, when the court process will likely take longer.
- Private and confidential: Unlike court proceedings, mediation sessions are not public and are held in private.
- Empowers parties: mediation allows parties to maintain control over the outcome, rather than having the judge decide.
Legal framework and court involvement:
In many jurisdictions, mediation is court-ordered or court-recommended, especially in custody and visitation disputes. This is as mediation allows the parties to keep relationships healthy by producing an agreement based upon the parties’ wants and desires. Mediation will produce a voluntary settlement which can be made binding in the courts. A binding decision will mean that the parties must comply with the decision made.
Limitations of mediation:
- Not suitable in all cases – mediation may not be the best avenue where, for example, the party requires injunctive relief. This is as the mediator does not have the power to grant such remedies.
- Matters law – It may also not be suitable where the dispute involves a complex point of law. In such events, the dispute may be best resolved by the court.
- Not binding unless formalised – agreements reached through mediation are not automatically enforceable, unless entered into a consent order or approved by a judge.
The mediator’s role in family disputes:
The mediator will act as an independent, impartial third party who will encourage communications and negotiations between family members to reach an agreement which may be in the interest of both parties. Importantly, the mediator will not impose a decision upon family members but will guide them to reaching a solution. This is as mediation is a non-determinative form of ADR in which the decision produced will be a voluntary settlement. It is only enforced and made binding through the courts.
The mediator will have the following role in family disputes:
- Creating a safe and respectful environment:
- Ensure each party has the opportunity to speak or to be heard.
- Establish grounds for respectful communication.
- Manage the emotional tension which is especially of importance in the context of family disputes.
- Clarifying issues:
- Establishing what the issues are and how they could be resolved, taking into account the interest of the family members.
- The mediator will often allow the parties to give opening statements and also enter into private discussions with them to understand their position, concerns, needs and wants to help them to identify and resolve the issue(s).
- Facilitating communications:
- Reducing any misunderstandings between the parties.
- Encouraging open and honest communications.
- Promoting fairness and voluntary agreement:
- Helping to assess the fairness of any proposed solutions.
- Ensuring no one feels pressured or is coerced into a particular settlement.
- Providing information to the parties (not giving legal advice):
- The mediator may offer information about legal processes (for example, on divorce or child custody).
The mediation:
Although there is no fixed format, the parties will normally be invited to make an opening statement. They will then retire to separate rooms in which the mediator will enter into private discussions with each party to identify their position, concerns, needs and wants. The mediator will then encourage settlement between the parties by providing suggestions based upon the information received. If the parties do reach a settlement, it will usually be a term of the mediation agreement, that the settlement is recorded in writing and signed by all of the parties present at the mediation.
Conclusion:
Mediation can be a very effective form of dispute resolution especially in the context of family law which can often produce very sensitive and emotional disputes. It can be preferred and is often advised over litigation, as mediation helps family members to resolve a dispute amicably, preserving and keeping the relationship between the parties as healthy as possible.
This article was completed by Sarabjit Roath, a work experience intern at Lawdit Solicitors.
