Why mediation works
Somehow you have to find a way to be able to talk face-to-face again - to understand each other’s position and to work out the best way forward.
A mediator’s role is to help you to do that.
The very fact of talking together under the leadership of an absolutely neutral third party enables you to relax enough to see your problems more clearly and to understand how your ex-partner sees his or her problems.
The Mediator will set simple ground rules as to how the meeting will be conducted. There will be no shouting or bullying. The atmosphere will be respectful. He will explore what each of you wants and help you to discover the best way to get there.
Specifically, we stay together during discussion and negotiation. It is possible that one or both of you might want the opportunity to talk privately to him in the course of the mediation.
If you think that might happen then it’s a good idea for you to plan the availability of another room, right from the beginning. Your mediator should also be willing to talk to each of you on the phone for half an hour a day or two before the mediation meeting.
The Mediator is happy to talk to you personally and separately, to assess for certain whether he can help you and, if so, what mediation procedure might best suit you, and when and how an appointment can be made.
Before you contact the Mediator it’s a good idea to decide how you want his help.
At some point you will have to book the Mediator’s time.
Some mediators will not work for a shorter time than a full day. Our experience is that divorce mediation is best undertaken in one or more three-hour sessions. If one is not enough, you can easily book another. If your affairs are complicated – maybe by living in different parts of the country or having multiple interests – you may need even more sessions.
If you are both working, it might also be helpful to you to find a mediator who is willing to make an evening visit, or to continue the mediation process online. Alternatively, you might find it useful to instruct your mediator to start the process by email or telephone, and complete it with a live meeting. The point we make is that mediation is a flexible process.
It is absolutely essential that if you want to come out of your divorce with the best possible situation for your children and yourselves, you need to make a plan. What’s more, at a difficult time like this is a good idea to write everything down.
Soft copy is not much help when you need to grab something in a hurry when the telephone rings. If you are making frantic arrangements and still dealing with the everyday task of parenting, you need to do everything you can to keep on top of divorce issues.
This is not connected to procedures or law. It’s about your decisions. Whether you are a perpetual worrier or someone who takes everything in your stride, you will feel better for having sorted out these things in your mind.
Find the most appropriate mediator
The first point you need to understand is what the Mediator can and cannot do. You might say that he is a referee in your negotiation together. It is not part of his job to plan your lives or worry about your children.
Although he will try to find solutions you may not have considered, that does not mean he will have an answer to every problem where you have none.
The basic skills and qualifications of the Mediator are:
- to be a lawyer
- to understand the psychology of human nature
- to be able to think outside the box
- to be able to lead a discussion without the parties realising that he is doing so
The Mediator will not:
- be a counsellor
- be interested in details of your past arguments
- criticise or take sides. Impartiality is the very essence of a mediator’s professionalism
- advise you as to your position in law – although he may usefully explain the basic law or what happens in court.
You can read examples of the types of dispute relating to family or personal life where a mediator is typically used, and how these might be resolved.
Qualifications, experience and empathy
To practice family mediation, it is not essential to be a solicitor or barrister, but a background in law enables your mediator to constantly be aware of what might happen if you went to Court. You need to know what a Court might say because that is the ultimate backstop if all else fails.
If you decide to go to the mediator to sort out particular problems remaining after other things have been settled between you, you may find it useful to use him or her as a sounding board and general adviser in relation to what you have already agreed.
Furthermore, a mediator who has come to a career in mediation fresh from university, or after leaving a career in social services or counseling, is unlikely to have sufficient legal knowledge As a result, it is difficult for that mediator to understand what a Court might approve when finally asked to endorse your settlement.
In the round, you are looking for someone who has a deep interest in what makes us all tick. But even that is not enough. Your mediator has to be able to understand immediately what each of the parties wants and to be able to assess how each may react to the other.
He or she has to be able to maintain a psychological balance between the parties, making sure that a nervous person feels confident and that a bully will be restrained. He or she must lead the proceedings and suggest both ideas and consequences. Yet he or she must never be seen as a judge.
Your mediator must be able to see a picture of the lives of both parties. He or she must be able to suggest the best possible routes for each of you out of the difficulties of today and into your new lives tomorrow.
You could start with the Court system
We're not talking about rushing off to Court. Rather, the government and the judiciary have been pressing increasingly hard this last few years for people in the throes of separating their lives to use mediation rather than the court service. This saves a gigantic amount of money which used to be spent on Legal Aid. It also frees up the time of Court staff and judges.
It is even possible to obtain Legal Aid for mediation. But, because the process is government-sponsored, there has to be a consistent structure with consistent outcomes at a consistent price. That tends to remove the flexibility and blue sky thinking which is the essence of efficient mediation.
Any process that is government-sponsored obviously tends to be more bureaucratic and rules driven than an entirely private service. That is the price you pay for a specified service at a specified fee. Nonetheless, most of the mediators who provide that service will be happy to continue to work for you if you need more help.
Where else to look
There are several large organisations promoting mediation. There are drawbacks to this way of finding a mediator. A large organisation may well have a nationwide list of mediators. You can search the list, sometimes through a set of filters, in much the same way as you might look for a new house.
The downside of this process is that you have little opportunity to assess each mediator from a distance. Once you have made the critical phone call you may be drawn into a marketing process without having had the opportunity to ask questions and to consider whether what they offer is right for you. Some are more interested in selling training services to would-be mediators.
The best way to find a mediator
The best place to start is to explore the website of specific independent mediators. That way you are reading about an individual or small set of people who are full-time professional mediators. Most will be solicitors and most of those will have experience of handling family law issues in every detail. They will not rely on having "been on a course".
Once children issues are covered, most other issues relate to money, one way or another. To help you with issues relating to housing, money, business, investments, pensions, you are best advised to find a mediator with experience of the business world.
When you first come to mediation, both of you will have an intention to cooperate and settle some of the most important elements of your future life. You need settlement now, not later. So, whatever the deal offered to you, make sure it is likely to help you to settle fast without having to spin it out over a longer period.