Separating in a pandemic: How mediation can help

What is mediation?

Family mediation is an effective and constructive way of resolving disputes arising from the breakdown of a relationship without going to court. It provides a safe and private place for frank and open discussions between separating couples so that they can agree arrangements for their future.

A mediator meets with both individuals together. The mediator will first help to identify the issues to be resolved. They will then facilitate further discussion so that solutions can be found.

The aim is to find an acceptable outcome that will work for them and their family.

How does mediation support separating parents?

The transition from parenting as a couple to parenting as separated parents can be difficult to navigate. By providing an environment for open but ‘without prejudice’ discussion, mediation allows couples to focus on the needs of their children, so that they can discuss options in a safe space and find workable solutions for the family as a whole.

Through these discussions, mediation can also help separating couples to communicate more effectively, and tension and hostility will therefore be reduced.

All of these things can assist couples to move forward, helping them to work together for the benefit of their children.

Can mediation be used to resolve financial matters?

Mediation is an effective way of resolving financial matters, even where there is substantial wealth.

A concern often raised in relation to mediation is that there will be a lack of financial disclosure. However, this concern is misplaced. The disclosure process can take place within mediation. The mediator can assist with disclosure of all financial information and documentation, helping parties to ensure that the financial picture is sufficiently clear.

As disclosure has taken place in the presence of both parties, it can be explained as matters proceed. Crucially, any financial disclosure given in mediation is not ‘without prejudice’ so should the need arise in due course, it can be presented before a court.

Equally, if financial disclosure has already taken place through solicitors, couples may choose to try mediation before court proceedings are started.

Why do couples in mediation also need their own solicitors?

Mediators are neutral and impartial. They do not 'take sides', and they cannot give legal advice to either person. However, they can give information about family law to both clients in order to help discussions move forward. For this reason it can be helpful to choose a family mediator who is also an experienced family lawyer.

However, it is also important that both individuals have their own solicitor. This is because, particularly where financial arrangements are being considered, both will need an understanding of the range of potential outcomes the court may order in their particular circumstances, in order to have effective discussions in mediation and ultimately make an informed decision.

It is not necessary for parties to have solicitors at the outset of mediation, but they will, in any event, be required to consider any mutually acceptable proposals reached in mediation and, if then agreed, to prepare the necessary paperwork for the court.

How cost effective is mediation?

In December it was reported that HM Courts & Tribunals Service estimates that private law family cases may not return to pre-Covid levels for another three years. The court system was already over-burdened, and the current Covid-19 pandemic has significantly worsened the position. It is clear that there will be significant delays for a very long time to come.

In contrast, couples can begin family mediation straight away. This means that any issues that have arisen that need to be resolved quickly, for example immediate living arrangements, can be addressed without any delay.

In many cases, an overall solution can be found far quicker than it takes to be listed for a court hearing. Even where a couple are not able to resolve all of their differences, the issues will nearly always be significantly reduced, which also significantly reduces the cost of any future litigation; it also aids parties to understand each other’s positions better and in a safe space which helps to reduce potential conflict.

Is mediation confidential?

Discussions that take place in mediation are confidential and without prejudice. They cannot be repeated in court if matters are not resolved.

The confidential nature of mediation is a significant advantage when compared to court proceedings. If a court hearing is required to resolve an issue, it is likely that members of the press would be able to attend the court hearing if they so wished. It is possible that the judgments given by the court will be published. Usually these judgments are anonymised. Sometimes they are not. Even anonymised, the prospect of the finer details of one's personal and private life being published is unattractive.

In contrast, only the participants, their solicitors and the mediator will know what was discussed in mediation.

Is it binding?

No, any mutually acceptable proposals reached in mediation are not instantly legally binding. At the end of the mediation process, the couple will each need to obtain legal advice about any of the proposals and how these may be converted into a court order.

Whereas it is essential that any financial arrangements are turned into a court order, this may not be necessary in relation to arrangements for children.

How mediation can help

The current restrictions imposed as a result of the Covid-19 pandemic have placed couples under huge pressure.

Where separation becomes inevitable, mediation provides a cost effective and efficient method of resolving issues that can arise both in the short term and the longer term.

Crucially, it can assist to reduce conflict and stress for both parties at what can be an incredibly difficult time.

If you require further information about anything covered in this article, please contact Sara Hunt, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, February 2021

This article was originally published here on 17 February 2021, and is reproduced with kind permission of eprivateclient.