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Clarke & Son Blog​

Family Mediation Week 18-22 January 2021

Family Mediation Week raises awareness of mediation and how it can help separating families manage their issues collaboratively and productively.

Here at Clarke & Son, our team of family law experts advise clients at the outset of their case about what options may be open to them with a view to reaching a mutually satisfactory conclusion, and that includes advising clients about Alternative Dispute Resolution (ADR) methods, one of which is mediation.

Embarking on the mediation process involves both parties having a separate individual intake meeting each with the mediator. Even in the absence of a national lockdown due to the continued effects of the global COVID-19 pandemic, that intake meeting lends itself to being dealt with remotely, whether via telephone or video conference. 

Once the mediator has been able to discuss matters in very general terms with both parties separately, the mediator will then confirm whether they believe the case is suitable for mediation or not.  As a general rule, where there are concerns about domestic abuse or concerns about an imbalance in power between the parties, it may well be that mediation is deemed inappropriate. 

Even in circumstances where there may be concerns about the appropriateness of mediation as a forum within which matters could progress, appropriate layers of protection can be put in place to ensure that mediation can move forward.  Such protection could manifest itself in “shuttle” mediation, where neither party would have any direct contact with the other, with the mediator then liaising separately between the parties during any mediation session.  Remote mediation is a very straightforward way of facilitating that, for obvious reasons, and in the absence of restrictions on our movements and who we are able to meet, shuttle mediation when taking place in person, would mean both parties being the same building, but in separate rooms, with the mediator going backwards and forwards between the parties, ensuring that they did not come into contact with each other.

If mediation is deemed appropriate, and there are no concerns about the parties having any direct contact with each other during a mediation session, then a joint session with the mediator will be set up.  That first joint session sets out the parameters within which mediation will take place, and indeed how it will move forward, and will be an opportunity the parties to confirm what their stated aims are. 

Matters of any nature can be mediated upon, whether it be trying to decide how best to deal with the potential division of the matrimonial finances on the breakdown of a marriage, or what arrangements should be put in place for a child or children splitting their time between the separated parents.  Mediation can also be undertaken with regards to a dispute about the ownership of a property owned by cohabitees.

Given what is at stake for both parties when undertaking the mediation process, it is imperative that the mediator has a family law background, which could mean the mediator is a practising family law solicitor, or family law barrister, who are able to bring their relevant expertise to the matter.

In mediation, it is more often than not the case that the expectation will be that the parties will mediate without the direct involvement of their solicitors during any joint sessions, but that of itself is not a bar to a solicitor being able to assist in the background whilst the mediation process is going on, such as liaising with the client either immediately before or immediately after any joint session. Mediators can offer the option of other experts joining in with the meetings, a process known as co mediation, to give the parties an insight to matters of a non-legal, such as a child psychologist in circumstances where there may be a high level of conflict between the parties.

When there are young children involved and the matter that needs to be mediated upon is not specifically with regards to what arrangements should be put in place for the child or children splitting their time between the separated parents, mediation can be a way of trying to reach a conclusion in a more holistic manner. 

In the event that an agreement can be reached in mediation, where necessary, that agreement will then need to be formally set down in a legally binding document, and that can be drafted by one of the parties’ solicitors.

In our experience mediation works best, and has the highest chances of success where to a large extent both parties are on the same page as the issues in dispute will be narrower.  If there are significant issues in dispute it may be more difficult to reach a successful conclusion through mediation, and mediation is not necessarily the most appropriate way of dealing with all cases.

Mediation is but one method of reaching a conclusion and if you would like to discuss whether your case may or may not be suitable for mediation, or any other ADR methods, then you should not hesitate to contact our team of family law experts who are on hand to assist.

If you would like to speak to our Family Law team please call 01256 320555 or email mail@clarkeandson.co.uk.

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