Are you thinking about mediation? Are you worried and feeling unsure about what will be involved? If so, here is a general overview of the process to help put your mind at rest and assist you in feeling more prepared.
The process starts off with an initial call from you to enquire about setting up mediation. At this point, the mediator will need to know some basic information including your full name, the name of the other person that you are looking to mediate with and what you are hoping mediation can help you both with. During the initial call, any general questions or queries about mediation can be discussed and a time will then be arranged for you to come in and meet with the mediator for an initial 1:1 meeting. The person that you are looking to mediate with will also need to call the mediator so they can have the opportunity to have a similar conversation with the mediator and set up their initial 1:1 meeting.
Following the initial call, the mediator is likely to send you both some information about mediation. This may include their standard terms and conditions including details about their fees/an agreement to mediate (which is in effect the contract that you will all enter into if you decide to go ahead with the mediation process) and a preliminary information form, for you each to fill in and return to the mediator prior to the initial 1:1 meeting. This form ensures the mediator has all the information to hand to assist you both and effectively manage the mediation process for each of you.
The next step will be for you both to come in, separately, for your individual 1:1 meeting with the mediator at the mediator’s office. The initial 1:1 meeting usually lasts for about 30 to 45 minutes, but it depends on your situation. The initial 1:1 meetings are important as they enable you to meet and get to know the mediator, and likewise, it is an opportunity for the mediator to meet and get to know each of you individually outside of the dynamic of a joint meeting.
The mediator is likely to want to know the following to help them work out whether mediation is suitable for you both and if so how best to structure the process:
- Whether you have any concerns about your safety when in the same room as the person you are entering into mediation with or about voicing your opinions in front of them?
- How you have dealt with any conflict between you both in the past?
- What types of roles/responsibilities you have each had in the relationship?
- How you have both communicated with each other in the past to make decisions?
- Are there any issues that could trigger strong emotional reactions for either of you?
The initial 1:1 meeting also enable you both to raise questions with the mediator that you may feel unsure about raising in front of the other person and for the mediator to assist you both in preparing for the mediation process.
It is important to be aware from the outset that mediation is an open and transparent process. The mediator cannot hold confidences and therefore if mediation proceeds it will be on the basis that all information must be shared.
Other key principles of the mediation process (which the mediator will explain to you at the start include:
- Mediation is voluntary and those participating in the process must do so as a result of their own free will;
- Mediation is confidential, there are exceptions to this though as the mediator is under a duty to report any risk of any harm or abuse and mediators also can’t keep any information confidential in relation to committing an offence or breaking the law. Financial information disclosed within the process is not confidential and is regarded as open so it can be relied upon and referred to outside of the process;
- Any outcomes reached at mediation are ‘without prejudice’ although both participants can agree that they want the without prejudice nature of any outcome to be lifted. If this happens the outcomes become ‘open’ and can be openly referred to outside the mediation process and if necessary converted into a legally binding order through the court with the assistance of lawyers.
- The confidential and without prejudice nature of mediation – subject to the exceptions mentioned above – is important as it enables there to be a safe and private space in which you both have the freedom to explore different options and have detailed discussions about the matters that are important to you without the fear of it being used against you;
- The mediator is impartial and will act in an even-handed way. The mediator can provide information and guidance and notify participants if the proposals or decisions they are considering fall outside the parameters of what a court might approve or order. It is important to understand that mediation doesn’t replace independent advice though, people using mediation are recommended to seek independent advice alongside the process.
Assuming, following the initial 1:1 meeting, that the mediation process is deemed to be suitable for you both and that you both want to proceed, a date and time can be arranged for the first joint mediation session.
At the first joint meeting, the mediator will ensure that you both fully understand the mediation process and the terms of the agreement to mediate. At the start of the first joint meeting, if you all want to proceed, you will then all sign the agreement to mediate so the mediation process can begin.
At the start of each joint meeting, an agenda will be worked out and the mediator will help you both prioritise and use the time in the joint meetings as effective as possible. A joint meeting will usually last about 90 minutes.
If finances are something that needs to be sorted out within the mediation process then there will need to be a clear understanding of the financial position in order to do this. Mediation should not be viewed as light touch as far as financial disclosure is concerned. There is a duty for there to be full and frank financial disclosure when sorting out financial matters regardless of what process option is used. Disclosure by way of completing what is known as a Form E is usually required. A mediator will be able to go through a blank Form E with you both within the joint meeting to help you both work out what information is necessary and give guidance as to how to obtain it.
The joint meetings are likely to be held at the mediator’s office. On average most people need about 3-5 joint sessions, but of course, that will depend on the individual circumstances of each of the couples entering into mediation. It will usually involve all 3 of you in the room together sitting around a table. There will be a breakout room/space available if during the meetings either of you needs some timeout to reflect and collate your thoughts. Refreshments (water, tea, coffee and often biscuits/fruit) will be available. The mediator is likely to have a flip chart in the room which they will use (a bit old school I know but it really is proven to be a very effective tool and visual aid within the process). Other professionals in addition to the mediator may be needed to assist in the process such as a family consultant, accountant, financial adviser or lawyers and if so, this can be discussed and in some cases, they can attend the joint meetings too.
It is usual to feel apprehensive and nervous about mediation. Try not to worry too much. Mediators who are registered with the Family Mediation Council are highly trained and have expertise in helping to facilitate discussions, manage and address any power imbalances as well as working in a way to try and help put you at ease, at what is understandably often a very fraught and difficult time in your life.
To get the most out of mediation it helps if egos and positional stances can be left at the door. If you can both enter into the process with an open mind, willing to listen and see things from each other’s point of view you are likely to both get more out of mediation. It is common for a deadlock to occur at times. Be prepared for this and have a read through of my blog that contains some tops tips on how to deal with impasse. The mediator will be there too, of course, to help you both try and see things from a different perspective and overcome any stalemates.
At the end of each the joint meetings, a list of action points will be decided and the date for the next session can be scheduled. Some mediators will email following each meeting with a short summary of the action points so everyone is clear on the next steps.
At the end of the process, the mediator can convert the outcome into a document called a Memorandum of Understanding and also produce for you (if you have been dealing with financial matters within mediation) an Open Financial Statement. The Memorandum of Understanding is a without prejudice document, it will record the proposals reached together with an explanation as to what lies behind the proposals and the decisions reached. The Open Financial Statement is an open document that summarises the financial information that has been provided and which has formed the basis of the proposals reached. A mediator can also prepare a Parenting Plan for you both if within the mediation process proposals in relation to the arrangements for the children have been worked out. These documents can then be provided to your respective lawyers (it is best to instruct lawyers who are members of resolution, many will have experience in non-court based dispute resolution, for example, they may be trained as a collaborative lawyer or also be trained as a mediator themselves). The lawyers can then advise and assist in finalising matters for you in the most constructive and cost-effective way.
The above is an overview to provide you with some general guidance as to what to expect from mediation. Mediation is a tailor-made process and therefore the specifics of the process will vary depending on the needs of the people engaging in the mediation.