Tuesday, August 14, 2018
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Mediation

What is family mediation? 

Using mediation helps you to find ways to communicate with each other as separated parents and is a more amicable model than the traditional legal approach. Basically mediation tends to fall into three different categories, children mediation, finance and property mediation and all issues mediation.

Mediation is:
· a process by which couples negotiate face to face about the arrangements for their future with the help of a neutral third party – a mediator;
· a safe place to resolve your differences at your own pace;
· an opportunity to recognise the needs of your children as well as yourselves;
· a way of helping you to reach agreements which take account of all your needs, concerns and interests;
· comprehensive – we can look at all issues together;
· confidential, save for the sharing of financial information and any concerns about child protection;
· suitable not only for married couples but also if you co-habit, whether same sex under the Civil Partnerships Act, or heterosexual, where the law is much less clear.

There are four main principles:
  1. Mediation is voluntary. There will be no undue pressure on you to participate in the process, although increasingly Courts expect you to have attempted mediation before starting Court proceedings. In particular, mediators will be cautious about proceeding in cases of abuse or violence or an extreme imbalance of power;
  2. The mediators are impartial – mediators will not direct or express a personal opinion. (Although mediators will not give advice, they will often provide substantial information and guidance);
  3. Mediation is confidential, unless there are issues of Child Protection, Domestic Violence, or money laundering. Any set of proposals that are mutually acceptable will be written up as a confidential summary which will not be legally binding until ratified by lawyers or the Court and cannot be referred to in Court proceedings. There must however be comprehensive
    disclosure of financial information; this can be shared with lawyers or with the Court at a later stage;
  4. Decision making rests with the participants; that is, you are treated as the experts in dealing with your children, your finances and your future.

Mediation is NOT...
· Reconciliation – although the mediation process is designed to help improve communication between mediating parties. Mediation can be used by parties to discuss whether separation or divorce is the appropriate action to take. Information may be provided by the mediator upon how to implement those decisions, and the mediator may suggest relationship counselling or other forms of help and support.
· Counselling – the mediator is an independent, impartial negotiator. In the event of either party requiring counselling the mediator may be able to provide information upon how to contact a counsellor or counselling service.
· A substitute for legal advice - although the need for lawyers may be substantially reduced. Mediators are able to provide you with a great deal of information however they do not advise the parties to mediation and will suggest that you each take independent legal advice.
· An opportunity to impose views upon the other party to the mediation. The mediator ensures that both parties have the opportunity to air their views and to consider all aspects of the dispute prior to any proposals being reached.
· An opportunity to abuse participants to the mediation process. Various safeguards and checks are in place and these ensure that mediation sessions are carried out in the safest situation possible. A mediator may terminate mediation in the event of abuse of any party or the mediation process.
· Uncertain. Litigation is by its very nature uncertain in its outcome. When mediation succeeds, a final decision is reached there and then. Even when that does not happen the areas of consensus and dispute are clarified.
· Legally binding unless the parties to the mediation wish to enter into a legally binding agreement based upon the proposals arrived at within the mediation process. (Usually, the outcome of mediation is then put into a legally binding format through solicitors).
· Like the court process where the judge makes the decisions for you, the parties to the mediation are completely involved in the decision making process. Proposals are arrived at by agreement and are not imposed.

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