The process of separation is not an easy one. Whatever the issues are which need resolution be they financial in nature or child related , this is not a commercial transaction and even in the most straight forward of legal cases emotions can and frequently do get in the way of your ability to be pragmatic and objective.
Why Mediate?
The law is clear in that prior to issuing any sort of proceedings for financial remedy or proceedings in relation to children that parties should mediate and at the very least (save in very exceptional circumstances) attend an assessment appointment for mediation. This is called a MIAMS appointment.
What is a MIAMS appointment?
A MIAMS appointment is an appointment with an accredited family mediator. You and your ex-partner or other party to the process attend these appointments separately. The purpose of the MIAMS appointment is as follows:-
Find out what the issues are which need resolution
Discuss the background circumstances
Look at safety issues and other issues, if any, which may make mediation as a process unsuitable
Discuss the principles of family mediation
Find out about other forums of dispute resolution for example Collaborative law/arbitration
The MIAMS appointment tends to take 45-60 minutes.
If mediation is not to proceed then our accredited mediator will supply you with the relevant Court form if you intend to make an application to Court.
It is important to bear in mind that mediation can be used at any stage of dispute resolution be that prior to, during or at any point after a Court order has been made.
If mediation is to proceed then you will be invited to attend a joint session with the other party and our accredited mediator. In order for mediation to proceed to a joint session then the two of you need to be willing to engage in the process and our accredited mediator needs to assess the process as suitable.
What happens during Mediation?
The substantive process of mediation takes place typically over 2 or 3 joint sessions. Each session would last either 60 to 90 minutes, with longer sessions being available if required.
Family mediation generally takes place with you and the other party sitting in the same room as our accredited mediator. Sometimes mediation can and does take place on a shuttle basis i.e with the two of you sitting in different rooms. Usually however the sessions take place around a table in one of our mediation rooms.
The role of the mediator is an impartial one and whilst we can provide legal information we cannot provide legal advice. Mediation works best where you each have separate legal representation.
Finances
In financial mediations there is an exchange of financial disclosure which said exchange takes place either in advance of, or during the first joint mediation session. The documentation exchanged in mediation is open disclosure. What this means is that if the process breaks down that information can be provided to a Court. The discussions however are “without prejudice” i.e confidential and cannot be relayed to a Court or relied upon legally unless or until a formal agreement is reached.
Typically in a financial mediation the first session is taken up going through the financial documentation, raising points of query, agreeing action points and starting to discuss options. Following that session and indeed every session of mediation , a mediation record is prepared. That document contains a summary of issues discussed during the session and agreed tasks/action points to be dealt with prior to the next session taking place. Further sessions then take place typically 2-4 weeks apart and in between those times you have the opportunity and are encouraged to seek independent legal advice.
If an agreement is reached in mediation then our accredited mediator draws up that agreement. This document is called a Memorandum of Understanding. The document is, once agreed by all parties, signed and sent to your solicitors. Your solicitors will then in turn convert that document into a legally binding form and file this with the Court.
Children
In mediation concerning children then the content of the meetings will of course depend upon the issues needing to be discussed. Issues may include re-establishing arrangements with one party, trying to agree a structure of arrangements following separation during school term times and school holiday periods. The mediation may be required to focus upon specific points such as a change of school, or a removal from jurisdiction or change of name for example.
In all private children cases i.e legal proceedings concerning children other than care proceedings then the process of family mediation is encouraged at every stage right the way up to final hearings at Court and beyond. The purpose of family mediation and indeed one of the major benefits of the process is not only to agree practical arrangements but also to look at issues of communication and factors which lead to arrangements breaking down. Unlike a Court order then through the process of mediation parenting issues can be addressed.
Mediation can also include speaking to your children . This is process is known as Child Inclusive Mediation. This process involves our accredited mediator, with your consent and your child/children’s consent meeting with your child/children and finding out how they are doing, what they are finding difficult and how they see things as a family going forward. Child inclusive mediation is generally suitable for children aged 9 and over. Child inclusive mediation is a very specialist area and only very experienced family mediators with additional accreditations can undertake this work. Sally Clark holds the accreditation and is highly experienced in this area of work.
Summary
Mediation is not a panacea for all. It is not suitable in every case. However for the majority of family legal disputes family mediation is a pragmatic, cost effective and qualitatively preferable choice so help you avoid the financial and emotive costs of Court proceedings. Where children are involved, in particular, it is extremely important that on some level communication is preserved or improved for the benefit of your children going forward.
For more information on the process of family mediation and/ or to make a referral to our service please contact us on 01274 861 096 or via enquires@barnesclarkfamily.law