Introduction

Experience shows that family mediation may be appropriate at different stages of the legal and divorce or separation process for different couples. For some it is at an early stage before any extensive solicitors' correspondence or court proceedings. Such clients can refer themselves or be referred by their solicitors.

However, others need the benefit of some clarification of the issues in correspondence or a court based timetable and structure. Some simply need time from the initial break-up. Some need a resolution of an interim issue before mediation can usefully start. Accordingly many cases appropriate for mediation will appear before judges at interim or interlocutory hearings. Initial directions hearings can also be a particularly relevant time to consider mediation.

It is very important that these couples are identified and given appropriate encouragement into mediation. Often their lawyers may not have considered it, or may, wrongly, resist it. This leaflet explains how and when it may be appropriate to refer a couple to mediation.

Definition

Family mediation is a process in which trained and impartial mediators assist those involved in family or relationship breakdown and in particular separating and divorcing couples to communicate better with one another and to reach informed decisions about some or all of the related issues. The issues may concern their relationship, the present and future arrangements for any children, finance and property and any other practical matters. Definition of UK College of Family Mediators.

Benefits

Mediation enables people to retain responsibility for their own lives and particularly to continue to co-operate as parents. Benefits include:

1. Reducing hostility, bitterness and misunderstandings.
2. Improving communication.
3. Focusing on the children's needs for parents to co-operate as much as possible.
4. Avoiding a sense of winners and losers by reaching an agreed solution which has some benefits for all concerned.
5. Enabling a focus on sensible, lasting, workable arrangements through the direct communication of the parties and the skilled work of the mediator.

Who are the mediators?

Mediators come from varied professional backgrounds such as the law, social work and counselling. All are specifically trained in mediation skills. Those undertaking publicly funded (formerly legally aided) work must be assessed as competent by the Legal Services Commission in conjunction with the UK College of Family Mediators. All mediators are trained to mediate in children and financial disputes although some may specialise in one or the other.

Principles of family mediation

1. Participation is voluntary.
2. Mediation is a confidential process, except where child protection issues arise.
3. It is privileged - the content of discussions between the couple cannot be referred to or used in subsequent court proceedings unless both parties agree to waive the privilege or when part of open financial disclosure.
4. Financial disclosure is open - financial information obtained in mediation can be completed on a Mediation Form E (approved by the Lord Chancellor's Department) which is readily transferable to the Court Form E used in ancillary relief proceedings.
5. The mediator is both neutral and impartial as between the individuals concerned.
6. The parties make their own decisions and agree the outcomes of mediation.
7. There should be access to independent legal advice during mediation.

When is mediation not suitable?

1. If both parties are completely unwilling to consider negotiating.
2. If the dispute is incapable of being negotiated (e.g. cultural or religious differences).
3. Where there are unredressable imbalances of power or extreme conflict (e.g. some cases of domestic abuse when mediation would only take place with extreme caution and safety measures).
4. Where there is a major impairment of mental or physical capacity.
5. Where one or both parties feel coerced to attend.
6. Where there are criminal/child protection issues.
7. Where mediation has already been fully attempted.

When in the court process might mediation be particularly appropriate?

1. At an initial Directions Appointment where there is disagreement about children's arrangements such as residence or contact.
2. At a First Appointment if it seems that the issues in dispute are capable of early resolution by willing parties and before their Financial Dispute Resolution appointment (FDR). [See: FPR r.2.61D(2)(d)(iv).]
3. At a Financial Dispute Resolution appointment if there is large measure of consensus and instead of giving directions for trial.
4. After a substantial interim hearing which has removed a logjam and so enabled final outcomes now to be discussed.
5. On receipt of a report by a Children and Family Reporter (formerly a Court Welfare Officer).
6. When a party has gained protection through an order under Part IV of the Family Law Act 1996 and can then feel comfortable about meeting in mediation.

Note: Part of the case management of the overriding objectives of the ancillary relief procedure is to encourage the parties to settle their disputes through mediation where appropriate. [See: FPR 2.51B(6)(b).]

Length of the mediation process and court timetabling

While the number of mediation meetings varies according to the complexity of the case, there are usually between two and four meetings, with the routine offer of a later review meeting, which is particularly useful when trying out arrangements for children.

It is common practice and quite appropriate for the court to adjourn the matter for a set period for mediation to be attempted. A further directions or other adjourned hearing date is then fixed and the mediator informs the parties and usually the court of the basic outcome for that hearing. This is usually in one of the following terms:

1. Mediation is successful.
2. Mediation is partly successful and the couple request an adjournment to attend further meetings.
3. Mediation is unsuccessful and the couple wish to proceed with court based means to resolve their dispute.
4. The details of any mediated settlement are conveyed in writing to the parties and their legal representatives.

Interface between mediators and the courts

There are currently a variety of referral arrangements between local courts and mediators.

Some courts send out information about mediation when the first application is made to the court. (The Lord Chancellor's Department have produced a booklet for the general public entitled 'Sorting things out together - how family mediation can help you'.

Some courts have a mediator available at court to provide information about mediation for the parties and their legal representatives or have advice agency staff, e.g. at CABx, to give this information.

Some courts provide an initial meeting where both a mediator and a court welfare officer explain their different roles. Others adjourn for an agreed period to enable the case to go to a local mediator.

Other courts refer less formally with the solicitors concerned contacting the mediator.

Both the Solicitors Family Law Association Code of Practice and the Law Society Family Law Protocol encourage and require solicitors to refer clients to mediation where appropriate.

Note: Discussions are currently taking place between the lead mediation bodies and the newly established Children and Family Court Advisory and Support Service to establish the most effective referral systems.

Meanwhile local courts may find it useful to have available details of local mediation services and practices.

Payment for mediation

One or both parties may be entitled to public funding (formerly known as legal aid) to meet the costs of attending mediation. An assessment of eligibility for public funding is carried out by the mediator at an initial meeting. The statutory charge does not apply to the costs of attending mediation. If a party is entitled to public funding for mediation there is a linked entitlement to a Help with Mediation certificate through a solicitor to cover associated advice and drafting of documents.

Useful names and addresses

The umbrella organisation for family mediation is the UK College of Family Mediators.

UK College of Family Mediators
24-32 Stephenson Way
London NWI 2HX
tel: 020 7391 9162
www.ukcfm.co.uk

The UK College of Family Mediators sets standards for family mediators, regulates and promotes family mediation; its members are drawn from all parts of the country and from all the professional backgrounds which inform family mediation. The College works closely with all the other organisations concerned with family mediation.

The approved bodies of the UK College (in England and Wales) are:

National Family Mediation (NFM)
9 Tavistock Place
London WCIH 95N
tel: 020 7388 9309
http://www.nfm.u-net.com/

Solicitors' Family Law Association (SFLA)
24 Croydon Road
Keston Kent BR2 6EZ
tel: 01689 850227
www.sfla.org.uk

ADR group
Grove House
Grove Road
Bristol BS6 6U N
www.adrgroup.co.uk

Each organisation will provide a list of members' services on request.