Author/Source/Copyright: Cambridge Family Law Practice
Here at CFLP we offer clients a choice of process to bring about a resolution of their dispute: using the court, negotiation, collaborative law or family mediation. As regular readers will know, the government has expressed its intention to put family mediation at the heart of its new vision for family justice,and our own experience suggests that more people are turning to mediators to assist them to work out their own answers to the problems they face. Family mediation can help people talk together to investigate options for moving forward in any kind of family dispute, about children or property or finances. If you want to know more about how family mediation works and what it can offer, have a look at our factsheet here.
For those about to embark on the process, we thought it might be helpful to set out a few pointers which, in our experience, might help you get the best out of family mediation.
1. Remember why you’ve come to mediation: to reach a solution.
Mediation is only worth embarking on if you are committed to trying to sort out the problems facing you. It helps to be as open-minded as you can be about how you might achieve what you want to achieve, and for both of you really to listen to the other person’s point of view. The more you understand about the other person’s concerns, the better you may be able to address them, with the mediator’s help where necessary, and reach a mutually acceptable solution.
If it is possible, try to change the way you think of your former partner so that he or she is no longer an ex, but instead a co-parent or co-owner of property with a similar interest to you in sorting out your differences. If there are children involved, try to look at things from their perspective, and think about how best the two of you might be able to fulfil their needs at this difficult time and in the future.
2. Be aware of, and take responsibility for, the effect of your words and behaviour in mediation.
Emotions can run very high in a mediation session. Mediators understand that there can be a huge pull to argue over what went wrong, or to get hung up on a particular incident about which you know you disagree. Like all people who were once in a close relationship, the two of you will each know exactly what to say to wind each other up. In relationships everyone has their own truth and people see things from different perspectives: you may never be able to convert the other person to your point of view and you may find that agreeing to disagree frees you up to concentrate on the immediate issues that have brought you into mediation. Also, bear in mind that the mediator will remain impartial so there is no point in trying to persuade him or her that your view is the right one: it’s up to the two of you to find a way forward that you can both live with.
If you can resist the temptation to fight fire with fire and instead focus on the issues rather than the person, progress becomes easier, and we often find that such an approach by one is reciprocated by the other. Take the time to think before you react, and keep an eye on what you want to achieve.
3. Be aware of your best and worst alternatives to negotiating a solution in mediation.
It may help to have a clear idea before you enter mediation of what sort of solution you might be prepared to accept, but it also helps to understand what your other options are if mediation is not successful, for whatever reason. In most situations that we see, the main alternative option people think they have is to go to court, but this is not always the case: negotiations through solicitors without making a court application may help to sort out some issues that you don’t feel able to pursue face-to-face in mediation, or collaborative law may provide the means for a breakthrough.
For some people, doing nothing may be their best alternative, although in a family law context there is always the significant risk that doing nothing might precipitate a court application from the other person. There is no question that compared to mediation, going to court and asking a judge to make a decision will be expensive and the result may be unpredictable; the question is whether, compared to the solution on offer, these risks are worth taking for you.
4. Take legal advice.
Many of our mediation clients are referred to us by our fellow lawyers, but we encourage everyone who comes to us for mediation to take some legal advice before agreeing to a mediated settlement. Ideally, you should take legal advice before starting mediation and access it when you need to throughout the process, particularly in financial mediation after you have both given disclosure. A solicitor will give you some ideas on how you might look to settle the dispute, and a feel for what a court might order in your circumstances. Mediators can give legal information but not legal advice; advice will enable you evaluate your alternatives to a mediated solution.
It is important, however, to remember that the legal process and the mediation process are very different: what you might get on a good day from a sympathetic court may well come, if it does, at a much greater cost in many respects.
5. Take a long-term view.
If it’s financial or property matters you have to deal with, many people report a greater sense of closure from having worked through issues in mediation than if they had negotiated at arm’s length, or left it to a court to decide. If your differences are about your children, mediation offers the prospect of a new way to talk to each other about parenting together apart and a process, with a trained third party, to help you to do so constructively.
It’s scary to put aside the past – which you know – and look to the future, with all its uncertainties, but mediation can give you the opportunity to explain what you want your own future to look like, and see if that might be a common vision. It happens more often than you might think.