When is mediation unsuitable?
Whilst family mediation is an excellent way of resolving many family law disputes, there are some scenarios where it is not suitable. In cases where there are concerns about harm to a child (such as sexual or physical abuse and/or the involvement of social services), domestic abuse (which could be sexual, physical, emotional, financial and/or coercive control) or a significant imbalance of power within the relationship (for example due domestic abuse, substance misuse or a disability which impairs decision making) mediation is unlikely to be suitable.
As a result of abuse in a relationship one person maybe living in fear and unable to make their own decisions about what happens next. There may be legal restrictions in place to prevent the couple from being near each other. There might be a situation where abuse has taken place and it would now be unsafe for a child to spend time with that parent. If assets are being hidden or dissipated the court’s emergency powers maybe needed. In all these instances it is unlikely that mediation would be suitable.
There is a difference, though, between cases where mediation is not suitable (such as those mentioned above) and cases where mediation would be difficult but not necessarily inappropriate. Often when couples separate or divorce, levels of conflict between them are high, there is a power imbalance and communication has broken down, but that in itself doesn’t necessarily mean mediation is unsuitable.
One of the main advantages of family mediation as a model is that it is flexible. Mediation can be tailored to suit the needs of the separating couples, and there are different ways of approaching things depending on factors such as conflict and communication. For instance:
Often the reason why people don’t think mediation is suitable is because the couple are not emotionally and/or practically ready to mediate. Emotions may well be running high. Communication between the separating couple may have broken down. Sessions with a family consultant prior to embarking on mediation can help with this.
We have a fully embedded family consultant within our mediation team. Kim Crewe, our Director of Client Wellbeing, works alongside our mediators to support clients before entering into, and during, family mediation.
The family consultant will support the couple to manage their emotions and improve their communication skills. A family consultant can help a couple prepare for the mediation process and help them throughout.
Co-Mediation is where there are two mediators working together with the separating couple to enable outcomes to be reached. Two mediators working together may be more likely to overcome challenges than one mediator working alone. Different mediators will have different skills, experience and personalities. Choosing Co-Mediation can enable you to combine these to make mediation more productive and more effective overall. For example, where emotions are high following a separation, having a mediator who has a background as a lawyer together with a mediator who has a therapeutic background can be a way of helping to address the barriers that might be in place in preventing solutions being found.
If there is a power imbalance between the separating couple Co-Mediation can be a way of addressing this. For example, one of the separating couple may be very controlling and dominating, having two mediators rather than one can help to establish a better power balance in the room. Some separating couples may not have had any guidance in life to date with regards to how to resolve disputes. By working with Co-Mediators, the separating couple can see how the Co-Mediators interact and communicate. This can help the separating couple learn skills which can help improve the longevity of any outcome.
Shuttle mediation is when the separating couple are in separate rooms. They have no contact with each other at all. The mediator will go between the two separate rooms to facilitate the discussions. This protects the separating couple from having to respond immediately to each other and allows them time and space to reflect as well as not having to face each other which can help in cases where it would not be safe or suitable for the separating couple to be in the same room as each other.
Hybrid Mediation is a combination of the family and civil mediation models. It is particularly suited to high conflict cases. It facilitates the inclusion of lawyers directly into the process. The separating couple may feel able to be present in the same room as each other with their lawyers present, or if not they can sit in separate rooms. A hybrid mediator will only share information between the separating couple which they have been authorised to disclose. This means that hybrid mediators can have separate, confidential meetings with each of the separating couple to help find solutions.
The options above can often result in mediation being a suitable, and indeed safe and successful, process for many separating or divorcing couples.
The University of Exeter have produced a short video, Mediating Safely, which is a useful guide to help you understand whether mediation is right for you.
A specialist Family Law Mediator can help you decide whether mediation is suitable for you at a Mediation Information and Assessment Meeting (MIAM).
If you would like to arrange a MIAM with one of our specialist family law mediators please contact us.
For more information on our mediation services and guidance, please refer to our blog which covers different topics about mediation.
Gemma Hope is a Director, Specialist Family Law Solicitor, Mediator and Collaborative Lawyer in our Brighton team.