What happens in mediation?
Any monies or property you gain or retain are not subject to the statutory charge, i.e., you do not have to repay your mediation costs at some future date. This may not be the case when dealing with matters through your solicitor.
Whilst engaged in mediation you may also be entitled to some assistance from your Solicitor
which is also not subject to the statutory charge.
The Legal Services Commission will pay your mediator set charges for the work that he/she
undertakes on your behalf.
How do I know whether I will be entitled to public funding?
A legal aid mediator can make an assessment
Telephone the legal aid helpline, their number is 0845 345 4 345
For more information, visit theLegalServicesCommissionwebsite.
Recent figures show that the average cost of Court proceedings is around £5,000.00 - £7,000.00 per person. The average costs of private mediation are around £1,200. Remember if you are publicly funded the mediation is free.
What can I expect?
Assessment Meeting
When you make contact with a mediator or are referred to mediation by your solicitor you will be invited to attend a reliminary meeting, also referred to as an assessment meeting or intake. This is a very important meeting as it sets the foundation for successful mediation. It also gives you an opportunity to meet your mediator and to see the surroundings where mediation will take place.
At this meeting the mediator will;
- Assess whether your issues are suitable for mediation;
- Assess your financial situation. Will you be private or public funded?
- Inform you about any costs;
- Assess whether it is safe to mediate, (check for domestic violence) and how to provide a safe environment;
- Discuss the various forms of mediation and which would be most suitable – will it take place with one mediator or two, in the same room or separate rooms etc.,
Discuss the mediation process and any questions that you may have; inform you about other options – counselling, family therapy, collaborative law, using the legal process;
- Estimate the number of sessions required;
- Determine whether you are willing to mediate;
- Set a date for the first mediation session. (To be confirmed with the other party).
- Usually these meetings are held separately from your partner/former partner however it is possible to hold the meeting jointly if this is what you would prefer, although some time would always be spent with each person individually.
During Mediation
Mediation Sessions
The number of mediation sessions that you will need to attend depends upon the types of issues that you need to discuss. Your mediator will inform you how many sessions you are likely to need. You may be able to come to proposals in a straightforward matter in two sessions and more complex issues may take up to five or six sessions. Typically a mediation session lasts around 90 minutes.
At the end of the mediation process, the mediator will prepare a document setting out your situation
and proposals made in mediation (this is not legally binding). This may be shown to a solicitor to
obtain legal advice or if you wish form the basis of a court order.
Reaching an agreement
Proposals and agreements reached in mediation are “Without Prejudice” which means that they are not legally binding, and cannot be referred to in any subsequent court proceedings, (unless both parties waive privilege). This is to avoid any undue pressure and to enable appropriate advice to be obtained during the period of mediation. Advice obtained by lawyers should be brought to mediation so that clients can make informed decisions. Once agreements are reached in mediation, they are usually drawn up by your mediator in a Memorandum of Understanding or Statement of
Outcome that sets out proposals that are mutually acceptable to you.
It is also worth bearing in mind that:
· Agreements about arrangements for children reached in mediation are more likely to be maintained than those ordered by the Court.
· A co-operative post separation relationship achieved through mediation, will make it easier to re-negotiate future arrangements that respond to your child’s changing needs.
· FMA mediators will formulate the agreed proposals in such a way as to make the ratification of proposals through lawyers and Courts a relatively easy process.
· Even where mediation is not wholly “successful”, agreements as to some issues will often make the conclusion of overall settlements through lawyers a shorter and cheaper process.
· In cases where the Courts are already involved, your mediator may help you negotiate a partial lifting of confidentiality to assist you in bringing litigation to a close.
· Many of our services report a successful conclusion in at least 80% of cases. There is also plenty of evidence that agreed proposals owned by parents in mediation hold better than Court orders, especially in children cases.
What about solicitors?
If you decide to mediate you may contact a mediator directly You may ask a solicitor about mediation and if you see a solicitor about your relationship breakdown or child related problems, you should be given information about family mediation. In some instances a solicitor will not be able to deal with matters for you unless you have been referred to a mediator first to see whether the problems that you are having can be dealt with through the mediation process.
In some exceptional cases it may not be possible to deal with all or some of your problems by way of mediation and you may have to use a solicitor to act on your behalf. Your mediator will give you full information on this and how to proceed.
As a general rule, a solicitor is not involved face to face in the mediation process unless you decide to use a particular kind of mediation i.e., caucus mediation where each party has a lawyer and sees the mediator with the lawyer in turn. This is rarely used in family mediation.
Normally the mediator will see both parties together in the same room, the mediator is independent, impartial, does not take sides and does not give advice. The mediator is there for both of you and can give information on all kinds of matters. A mediator cannot advise or instruct you to take a particular course of action. But the mediator may suggest that you take further advice, for instance on specialist pension or tax issues.
When you need specific independent legal advice you can obtain that advice from a solicitor. Sometimes it is a good idea to get some basic advice before you start mediation so that you know what the legal position is, or you may decide to wait until you have discussed proposals in mediation. The solicitor instructed by you will advise you and act in accordance with your wishes.
The solicitor acts for you and you alone. A solicitor will deal with the mechanics of separation i.e., the preparation of divorce papers, court applications and orders and will, if the necessity arises, represent you in court on your behalf (or engage a barrister for you if needed). A mediator cannot do these tasks as it would compromise the mediator’s independence and neutrality.
Mediators will always recommend that you take legal advice alongside mediation, but because you are negotiating and agreeing issues in mediation, there is much less time and cost incurred on the legal side, so mediation is a very cost effective option to use.
Once you have completed mediation, and have firm proposals that you both agree on, you will need a solicitor to prepare legally binding documents.
