Sarah Jones, Partner and Head of Farnfields Family Team, is often asked the same questions by people enquiring about our mediation service. She has written this article to dispel ten common myths about mediation.
1. “Whenever we talk about our finances/children, we always go off-topic”
– When discussing the arrangements for finances, children and other topics it can, at times, be challenging to maintain a set agenda and you may end up feeling as if you are going round in circles. Experienced mediators help by facilitating discussions impartially and work with you both to address needs, as well as recommending what documentation you should bring to sessions to speed up the progress.
– At mediation, you ‘set the pace’ which, in our experience, has promoted valuable and focused discussions resulting in proposals tailored to individual circumstances. Having these discussions in the presence of a mediator boosts the chances of you moving forward post-separation or divorce and deciding upon proposals that reflect the detailed discussions that have taken place.
2. “Mediation is only about reconciliation it won’t help me”
– Put simply, mediation is not about reconciliation. We recognise that, when you come to us, you are going through a highly emotional time and as a result may feel overwhelmed by the prospect of having to sit down with your ex-partner and discuss your next steps.
– The mediator is neutral and will not take sides. Instead, they help facilitate discussion and promote progress towards reaching agreements on the topics discussed, based on each party having equal bargaining power. At each session, the mediator aims to show parties that they can listen, understand and agree upon arrangements with the other. In doing so, mediation will likely help improve communication between parties – far from a purpose of forcing a couple back together – so that they can move toward the next chapter in their lives with the right plans in place.
3. “My matter is too complex”
– Parties decide the topics they would like to discuss at mediation, which means that sessions can be all-encompassing. At Farnfields, we have dealt with cases where Social Services are involved, cases where there are assets abroad, and situations where there has been domestic abuse. For us, this clearly shows the flexibility in the process because you and your ex-partner have control over the agenda, the pace and the number of sessions you attend.
– The nature of mediation means that nothing can be ‘too complex’. With highly trained and experienced solicitor-mediators like ours, parties can tackle one issue at a time at whatever pace suits them best. This aspect of control does not exist in the same way with Court where parties must follow a Court timetable and abide by the Judge’s final decision. Mediation allows you to prioritise the topics that matter most to you most and will enable you to move at your own pace. This leaves people feeling less stressed while incurring fewer emotional and financial costs in comparison to the Court process.
4. “There have been issues with domestic abuse”
– Our mediators will assess whether mediation is a suitable option. If domestic abuse has taken place, it does not mean that mediation is not possible. Sessions can be tailored to ensure that no-one is put in danger and that you both feel comfortable and confident going into discussions. For instance, we offer what is known as “shuttle mediation” where you can be in separate rooms throughout the mediation. The mediator will move between you to facilitate discussions. We can also ensure that each party arrives and leaves sessions at different times. You can also bring others with you to sessions whom you feel will support you.
– Our main aim is to do everything that we can to protect you from harm and make sure that you partake in mediation feeling safe, confident to voice your views and motivated to achieve progress and a fair outcome overall.
5. “I have tried mediation before. It did not work then, so why bother now?”
– If mediation has not been successful before, it does not mean that you cannot try it again and succeed the second time around. Many factors may have resulted in mediation not working for you. This could have related to the highly emotive nature of sessions, or, perhaps, because, in the first instance, you did not opt for a mediator who was accredited and had experience in family law.
– When deciding to mediate many factors must be considered. You and your ex-partner must both be ready to discuss topics and understand the other’s position.
– Your choice of mediator is equally as important. Our mediators are highly experienced in what they do and have many years qualification as family solicitors, which will assist you in reaching proposals through negotiations and understanding what a Court would also view as being fair and reasonable. By being aware of the potential obstacles to success and working with your ex-partner and mediator to avoid them, you can enhance your chances of mediation working for you, and so it is it vital that you do not rule out the option of mediation for good.
– Our mediators understand that this process is not just about what is said, but also what is not said aloud – they are trained to observe and respond to people’s body language and non-verbal cues.
6. “Mediation won’t help us because our communication has broken down”
– If you and your partner are finding communicating difficult, our mediators can discuss how to move forward. A crucial part of the mediator’s role is to facilitate discussion and to keep parties focused on the issue in hand.
– Parents often find mediation particularly helpful when communication has broken down as it can pave the way for successful co-parenting in the future. Mediation clients who have attended mediation for child arrangement issues often tell us that they end the process by communicating better with their ex-partner than they have for years.
7. “Paying for divorce mediation solicitor and a mediator sounds expensive!”
– No matter at what point in your legal journey you start divorce mediation, you could save significant costs compared to settling through Court. All discussion about the issues is direct between the participants – you do not incur the costs of your solicitor writing letters on your behalf or the preparation that a hearing naturally entails.
– It can also be quicker than dealing with issues through correspondence as discussions flow more easily. Each person can take legal advice at any point but, depending on the nature of the talks, our mediators can often help you cover more in one session that could be achieved in weeks or months of correspondence.
– It is also important to remember that when a mediator is instructed, the costs are shared between you (*different rules apply for legal aid clients – please contact us for more details).
8. “I won’t be able to discuss everything I want to in mediation”
– When you start mediation, you and your mediation partner decide the agenda, and this can change (and be added to) as discussions progress. Absolutely anything can be discussed; our mediators have helped people resolve difficulties ranging from how much time their children should spend with each to which person should keep the holiday home in the South of France!
– For certain issues, mediation is the perfect environment for discussion about things not under the Court’s remit. No matter how much you may feel differently, pets are considered possessions and the Court cannot make decisions about whom they should spend time with. Mediators will facilitate productive conversation about what each of you thinks should happen – often with a positive outcome.
9. “Mediators take sides”
– This is not true – mediators are impartial and assist in facilitating discussions between parties. The benefit of having a neutral mediator is that they can help guide conversation.
– Fairfields mediators are also experienced family solicitors, which means they have a thorough understanding of what Courts will and will not consider being ‘fair’. Although mediators cannot offer legal advice, their extensive background in family law is advantageous to anyone involved in the mediation process.
10. “Mediation isn’t binding, and I don’t want to agree to anything that could be used against me later”
– Mediation cannot be ‘used against you’ as all discussions are confidential between you, your mediation partner, your solicitors and the mediator. You cannot refer to discussions that take place in court proceedings.
– Financial arrangments after divorce that you make in divorce mediation can be made legally binding if you also seek legal advice from a solicitor and have proposals drafted into a “financial remedy order” that is then approved by a Judge.
– For arrangements to do with children, the fact that mediation is not binding can be a huge advantage! Children grow up so fast, and their needs are continually evolving. If the arrangements to do with their care change, you can return to mediation to amend them.
– We have found that people are more likely to stick to arrangements in the long term when they have been agreed through mediation. Because you spend time discussing and directing negotiations and have had more control of the outcome, a sense of ownership means you walk away feeling empowered.