Families can be like warring nations; in conflict, with the occasional ceasefire before an ill-chosen inadvertent word or action causes the conflict to reignite. It’s a great deal easier to enflame than it is to dampen conflict and emotion, and conflict can be hugely expensive, both financially and emotionally.
The Government is actively promoting family mediation as a means to resolve family conflict, recognising that it is a good way to reduce the number of cases clogging up the court system, and more cost-effective than litigation. Happily, as well as saving money, it can also save relationships from deteriorating. This can mean, for example, that parents are still able to communicate effectively about their children even if they cannot remain together as partners. The evidence is clear that outcomes for the children of separating parents is directly affected by the level of conflict they experience.
Mediation is not just suitable for separating couples – it could be a dispute about an estate following the death of a family member, or perhaps a dispute between trustees, beneficiaries or company directors.
So how does mediation work?
As a mediator, I meet with each of the people in dispute, first privately and then together. Sometimes their lawyers will also be involved in those meetings. If it is a divorce or separation situation, then usually there will be a series of meetings to identify what the issues are, and to find solutions. Other disputes are often resolved in one longer meeting with lawyers present. Each party may take separate legal advice if they wish during the process. I am a referee; a process manager, and can share legal information and experience to help the parties navigate the legalities and practicalities involved in any issues they aren’t able to sort out themselves. I can also hold confidences; enabling middle ground to be found. The parties make the decisions, and control the outcome, rather than having decisions about their family lives made by a third party judge who has only a snapshot of their lives. Often the solutions are different and more creative than a judge can achieve within the legal framework, and the parties have the opportunity to voice their concerns (often loudly!) before focussing on solutions.
Mediation following a separation usually involves sorting out arrangements for the couple’s children, separating the finances from the divorce proceedings. The end result is usually a document recording what has been agreed about the arrangements for the children and about financial matters, which may form the basis of a court order made by consent. Mediation in other disputes usually results in an agreement recorded in a “Tomlin” order, which enables any ongoing court proceedings to end on the agreed terms.
The key benefits of mediation are cost-savings, speed, flexibility of process and outcome, complete confidentiality and improved communication, especially when compared with the effect that contested court proceedings can have. The process is just as rigorous as the court process when necessary, and in some ways, more rigorous. It is not an easy process though; the parties need to be willing to try to find solutions and compromise. However, if the parties are willing to do this, it may be sensible (regardless of the stage of the dispute) to try mediation to bring an end to their conflict.