Mediation: The benefits for a separating couple

Mediation Awareness Week this year runs from Monday 22 January. This is an opportunity for the Family Mediation Council (FMC) and family mediators all over the country to raise awareness about the important and effective form of alternative dispute resolution that mediation is. As family lawyers committed to resolving disputes constructively, we are hugely supportive of mediation and regularly recommend our clients try it to settle issues with their former spouse/partner in an amicable and cost-effective way.

What is mediation?

Mediation is the process by which a separating couple meet with a mediator to discuss their issues with a view to reaching a settlement. It is not about reconciliation. If a client would like to explore a reconciliation with their spouse, we will often encourage them to consider marriage counselling. The role of a mediator is to independently and objectively help a separating couple to work through issues and identify solutions that are fair and meet their family’s needs. Typically, mediation can be used to resolve financial issues, such as how property and assets are going to divided on divorce and what the living arrangements will be for a separating couple’s children, specifically how they will divide their time between their parents.

Why consider mediation

Mediation isn’t for everyone. It usually won’t be appropriate where there has been domestic violence for example. But for many, it can be a very effective way of dealing with the issues arising on their separation. We each know our own family best and are therefore best placed to make decisions that affect our children. Dealing with divorce is one of the hardest experiences in life. Emotionally, finding your own solutions with your ex can be the best way to enable you to move on with your life, because you have ownership of those solutions and will therefore be more accepting of them.

Using mediation to avoid court

We often encourage our clients to consider mediation not least to steer them clear of court. The family justice system is much like the NHS – full of hard working, dedicated people (judges, court staff etc) struggling with under-resourcing and huge numbers of cases. As such, changes are being considered to essentially require more people to resolve their disputes outside of court, through mediation or other forms of dispute resolution.

The Ministry of Justice is considering responses to a consultation in 2023 on various proposals aimed at increasing the number of family disputes which are resolved without going to court. Whilst it remains to be seen how many of the proposals may be implemented, we do know that from April 2024 the courts will be able to require parties to proceedings to produce a statement explaining their views on using alternative dispute resolution (such as mediation) and will be able to adjourn proceedings to encourage mediation and/or make costs order when there has been a failure to invite the opposing party to engage in mediation. The message is clear: the government wants separating couples to rely on the courts less.

There will always be a need for the court to make decisions in cases where parties are poles apart in their respective positions. However, in many cases, the input and assistance of a mediator is enough to breakthrough differences and bring about resolution.

This article was written by Helen Clyne, a senior lawyer in the family and divorce team. For more information about mediation, contact hc@debenhamsottaway.co.uk or call 01727 738250.