Family mediation - overview

If you just want to get started immediately, go to REQUEST TO MEDIATE

Note:  if you use our service, you do not need a separate Mediation Information & Assessment Meeting (MIAM) *****

How you feel today

Just in case you wondered, mediation is absolutely not about your togetherness.

No mediator is in the business of advising you about your personal relationship or trying to mend what is already broken.

Mediation is about picking up the pieces of eggshell and reconstructing them into two quite separate eggs with stronger shells than ever before.

Separation and divorce are usually the climax of a miserable time in your life. It is natural to want to get it over with as fast as possible so that you can give all your energy to your new life with established certainty on your money, your house, your job and, if you have children, their future.

Often, your decision to separate is the culmination of months, maybe years, of unhappiness. You are both frequently angry. It is impossible to have a sensible discussion about anything because the blame game cuts in immediately. You have lost respect for each other and you are no longer friends. But if you have children, you will be parents for ever.

It is easy for a website like this one to give advice but when your emotions are sucking you into a whirlpool and the structure around which you have lived over recent years has collapsed. It’s not so easy to talk together and agree the best way forward for both you and your children.

We also tell you on this website about when to use a solicitor or barrister.

The divorce is the easy part

There are two quite separate elements in your divorce situation.

The first is dealing with the legal separation – the divorce.

The second is everything else; that is money, home and children. The Court identifies specific, different applications for different remedies.

The divorce just deals with the legal part - the easy part. We do not propose to delve into the finer points. It would be most unusual to need help from a mediator in a question relating to your actual divorce.

If you have been unable to reach agreement around the four "justifications" for your divorce then it is more likely that you need a solicitor or barrister or counsellor than a mediator. So, mostly, the divorce is a process you will not find difficult.

Money is more complicated

What about the second part? It is more complicated. Your immediate goal is to present your draft financial order to Court in the form of a document in terms which the Court approves and will therefore confirm as an order. The Mediator can help you to prepare all the data for you or your solicitor to make a formal application to court.

Now there is a most important decision to be made.You have to decide whether your dispute with your ex-partner – whether physical, emotional, financial or any other – is so serious that you just have to issue a claim in court, or whether alternatively, you are both able to put to your feelings on one side and somehow find a way to resolve your differences and make a simple application to the Court to approve what you have agreed.

Unless there are issues of physical violence or some serious difficulty with your children, this decision should be a no-brainer.Taking the case through the Court will probably set each of you back by tens of thousands of pounds. It will also tie up your lives for three years and probably further damage your relationships with your children.

Money: The legal backstop

As in any mediation, the mediator and the parties should always bear in mind that the most forbidding alternative to settling the dispute as to take it to court. We explain elsewhere the benefits of mediation over litigation or arbitration.

In so far as money issues are concerned section 25 of the Matrimonial Causes Act 1973 provides the authority. Section 25(2) states:

“As regards the exercise of the powers of the court under section 23(1)( a ), ( b ) or ( c ), 24 [F5 , 24A [F6, 24B or 24E]] above in relation to a party to the marriage, the court shall in particular have regard to the following matters—

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

(h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit F7 . . . which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.”

We will now explore where you might start, in practice.

We hope your use of this website will already indicate that you have chosen to resolve your dispute’s as amicably as possible. We hope we can help you.

Use the mediation procedure to do it yourself

For the sake of simplicity we shall now assume that we are talking about all the elements of your separation which can be brought together and put before the court as a draft financial order, as mentioned above.

The fastest, lowest cost and most efficient way to deal with your financial order up is to do it yourself, using mediation to help you to thrash out the issues together.

You can then keep your solicitor - or barrister, as your fall back both to advise as needed and to give you the confidence to know you have a long stop to take you through the court process if all else fails.

Mediation can also be useful to satisfy yourselves that what you have agreed is likely to be accepted by the Court.

Whether you decide to conduct your divorce proceeding on a DIY basis or to use a barrister or solicitor is likely to depend on the money you can afford, the complications of your separation, and how careful and skilled you think you may be in dealing with the extensive paperwork.

If you want professional help in responding to correspondence from your ex-partner’s solicitor and dealing with court procedural issues, then a solicitor may be your best choice. If you want succinct and explicit explanation of law, rights and what might happen in court then a barrister might be your best bet.

If you want a written opinion on any legal issue, then that too as a task for a barrister. The fee rate is likely to be the same for both branches of the profession.

We also tell you on this website about when to use a solicitor or barrister. if you’re not sure where to go, we can also help you to find a solicitor.

What happens if you do not agree

Before the Court will accept any application concerning ancillary proceedings (anything other than your basic petition for divorce) you must already EITHER have undertaken mediation within a four-month period immediately preceding the filing of a divorce petition OR have taken part in a Mediation Information and Assessment Meeting (MIAM).

That is a simple process whereby the mediator will assess nothing more than whether or not your case is suitable for mediation. If that mediator decides that your case is not suitable then you are free to issue proceedings in court. If the report is that your case IS suitable, then the Court will insist that you do undertaken mediation.

A MIAM takes about 45 minutes and costs between £100 and £200. The MIAM mediator certifies that your case is suitable for mediation. Nothing more. The MIAM mediator is not allowed to continue to work with you in a full mediation.

So, even if you are determined to go to court, you still need to go to mediation first.

Mediation is the best way forward

In summary, you have nothing to be gained by spending money on a MIAM, instead of moving immediately to a full mediation with an expectation of settling all the outstanding points between you with the help of your chosen mediator whose experience may be a better fit for your particular issues.

You have now sensibly decided that there are better ways to spend tens of thousands of pounds than fighting in Court. You are now committed to agreeing the terms of a consent order even though you both know that the necessary changes to your lives will not necessarily be entirely what you would like.

Despite your commitment to a consent order it may still be important that no matter how you feel and no matter what you really want to say, all letters messages and other forms of correspondence are very carefully considered.

The reason is that until your consent order is approved by the Court, there is always the possibility that your ex-partner might decide to take stronger action through the court system.

If that happens, you can be sure that your ex-partner’s solicitor will try to dig out some brutal or tactless or bitter email message which just reflected your feelings of the moment and to use it to your disadvantage. When your feelings run high, a good policy is always to “sleep on it”.

Make it easy for yourself

The entire process of settling your financial affairs can be dealt with quickly and at low cost and the stress free environment, right through to engaging a solicitor to help to draw your financial consent order. All of that can be achieved at comparatively low cost. Now you just need to find a mediator who covers divorce, fix a mediation appointment, prepare your position statement and notes, put together all the other papers you might need to refer to in the mediation and in no time at all you will be working towards your draft consent order and your new life.

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/her problems too.

Your 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. The Mediator will explore what each of you wants and help you to discover the best way to get there.

If you cannot bear to sit down with your ex-partner even with the Mediator present then arrangements can be made for each of you in turn to talk privately with the Mediator in a series of short meetings. However, in family law mediation, that is rarely necessary.

Discuss and agree as far as you can

Before you contact the Mediator it’s a good idea to decide how you want his help.

Mediation meetings in family matters are usually conducted in such a way that the Mediator is as much a referee as a mediator.

Specifically, the parties stay together while negotiations and discussions take place. But if one or both of you might want the opportunity to talk privately to the Mediator in the course of the mediation then you should make that clear to the Mediator at the outset. 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.

Start with children arrangements

The Court wants to know as little as possible about the arrangements you have made for your child or children. However, if either of you flag up even a hint of a problem which could affect the home, health or general well-being of a child, the Court will move into overdrive to make sure all arrangements you have made prioritise the welfare of your child.

The effect of this is that your consent order (technically your financial order) does not need to say more about the children than to provide sufficient detail of your arrangements for them, to satisfy the Court that they will be well cared for.

That means that any agreement resulting from your mediation is left to cover:

  • broad arrangements in the round which can be carried forward into your consent agreement;
  • detailed arrangements to cover your proposals right now. These are not required for any legal purpose but simply to record what you have agreed so that each of you knows what you have committed to do;
  • separately, your target ideas for how things might unfold in the future. Your children’s requirements will change as they get older. Your own individual circumstances might change if you obtain better work or new work when you are not now working, or decide to share your life with some new partner.

This last section to be limited to broad situations. There’s nothing to be gained by trying to forecast the future.

That way, you cover both the arrangements for your children that you want right now as well as the broad assurances that the Court will note in passing in your draft order.

Calculate what income and capital you will both have and how you can best allocate it

In every relationship there is usually one partner who takes more interest in managing the money than the other. If you have been leaving your joint financial affairs to your ex-partner, now is the time to start considering exactly what money you will have in future, how you will spend it and whether it is adequate.

Mediation is a "managed negotiation" , so you cannot achieve the best outcome for yourself unless you have already explored what you want, what you might get, and what is your absolute minimum acceptable agreement. You need to do the same exercise in connection with your ex-partner’s affairs.

Your starting point in connection with money has to be to list all your sources of income and all of your outgoings. You will then have to agree how the outgoings will naturally increase in the immediate future and what you will have to cut in order to meet the income sources.

Next, use the government Money Advice Service calculator. This is a spreadsheet file containing many separate sheets listed as usual for a spreadsheet file, at the bottom of its window.

If both of you undertake this exercise you will immediately be able to identify areas of disagreement. It will not give you all the answers of course, but it will give you most of the questions. You can bring a print of this document with you to your mediation session, prioritising the issues outstanding between you and your ex-partner.

Using the calculator will also bring to your attention any problem you might have in identifying the figure to be inserted. For example, if one of you were to lose his/her job, that will impact heavily on what is available to the other not only for the cash maintenance of the children but even for where the other of you might be able to continue to live and maintain mortgage payments.

After those calculations and all that consideration you should also cover exactly what payment will be paid and received, when it will be paid, exactly what it will cover, and under what circumstances a reassessment should be discussed.

Your capital assets

This is an area which can be extremely contentious. First, both of you should disclose every asset so that you can agree its value. If you are in any doubt as to whether an asset should be disclosed then the answer is “yes it should”.

If it turns out that a party has failed to make full disclosure, the court will not hesitate to make an order which tends to penalise that party (although that term would never be used).

So what assets does each of you own? Has either of you ever actually asked the other what private assets he/she has? List them now.

Look closely at your pension values

If you own your own house, it may well be your most valuable asset. However, for many people, pension assets can be worth even more than the home they own. Very few people are actually aware of the value of the pension provision of the other of them.

Your pension provider is unlikely to move at the speed of light so you should ask for that valuation immediately. They will probably give you what is called a Cash Equivalent Transfer Value (CETV). However that is usually far less than the true value. To obtain that, you need an actuarial valuation. This website is useful in connection with pension arrangements on separation.

So, now that you have both put all your cards on the table, face up, what sum of money is to be transferred from one of you to the other as a lump sum? (That is a once and for all payment which terminates all financial obligation between you).

The Court will start with the proposition that after your separation, your assets should be approximately equal. However this is only a starting point. However, this is not just a question of totting up what’s on your notes and dividing by two.

There may be business assets in a family company. There may be barely remembered family trust or remainder in a grandparents will trust. Separating business interests alone, is likely to be the subject of a full mediation session.

Your home

There are several important angles on your home. It is not merely a roof over your heads. It is also a store of value, an investment, the centre of family life for your children, the base from which your children attend school and develop friendships.

There may be continuing mortgage payments which will increase the value of your existing home if one of you stays there. However, it may also be a gigantic liability in terms of loan repayments and maintenance. It may actually be located somewhere where two people worked together to make living there possible, but today that location may no longer be convenient for just one person.

None of these considerations can be handled knowledgeably by the Court. Only you can decide what is best for you. There are many options. It is a good idea to start with the legal position about how you own your home.

Separating your business interests

Rearranging your life and separation from your former life partner is difficult enough, whether or not you have children. However, when you have been involved in work together in some way, you have a whole new dimension of problems to deal with. Each of you needs to think very carefully about your own options and to take into account the options available to the other of you.

Even if you are barely on talking terms you should still try to break down each point of dispute, consider the inter-relationships and come up with possible answers. It is absolutely critical that you find a mediator with extensive business experience who will be able to come up with ideas you may not have considered.

Of course, every mediator has his own different personal experience, but knowing how business operates, the importance of cash flow, how your business is structured, the framework of the companies legislation, and so on, can be essential if you need to sort out your own business affairs.

We offer our services

We should be delighted to accept your instructions to mediate in connection with your divorce, separation and other family affairs. However, we wish to make clear that we do not accept instructions in respect of complicated or contentious issues relating to children, an abusive relationship, domestic violence, or drugs or alcohol addiction.

Our expertise relates to issues relating to money, housing, other property, business - and conventional children arrangements.

Our 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, when and how an appointment can be made, and more.

To instruct Andrew Taylor just go to REQUEST TO MEDIATE

If you want more information than you can find on this website by all means ring the number or send a message to action@themediator.co.uk .

*****     if you use our service, you do not need a Mediation Information & Assessment Meeting (MIAM). However, that is subject to your submitting your application to Court for a financial order within four months of completing the mediation. This applies whether or not the mediation process resulted in settlement of the dispute between you.