Mediation FAQs

Mediation is a way of helping people reach agreement when they are unable to do so without assistance. This usually arises on divorce or separation but can also be used pre marriage, for example agreeing the terms of a prenuptial agreement. On separation it usually covers money and the arrangements for any children.

NCDR refers to Non Court Dispute Resolution. It is a term you may hear from your solicitor or from the judge if you are already involved in court proceedings. All separating couples are now encouraged to consider NCDR as an alternative to the court process. NCDR takes many forms of which mediation is the best known. Basically, the court encourages couples to consider any alternative process which keeps couples away from the court. A full list of non-court options will be provided to you before we meet.

A mediator is the person who leads and facilitates negotiations between you. The mediator is a neutral person who does not take sides but whose aim is to help you agree an acceptable outcome.

It depends on the issues. You can search on-line for mediators with the specialist expertise you need. For example, if the issues are about your children you might want to work with someone who has a therapeutic background. However, if your case features significant money, you would likely want to appoint an experienced legally qualified mediator who is familiar with court outcomes. That is my area of expertise.

Nearly all cases are suitable for mediation but care needs to be taken to ensure it’s right for you. If there’s a history of domestic abuse, for example, it may not be suitable, or if there is a significant imbalance of power between you. You both have to want to reach an agreement and you have to be able to listen and hear the other person’s point of view. I will carry out an assessment of suitability at your first meeting (MIAM).

In order to get the best out of the process you will need to commit fully to it, including meeting agreed deadlines and being willing to listen and compromise. You will need to come to mediation with an open mind and a willingness to achieve an outcome that is fair to you both. Without that commitment from both parties, mediation is unlikely to be successful and you may need to consider other processes.

For financial mediations you will also be required to provide full and frank disclosure of all relevant information and documents. This is often completed with the help of a document known as a form E – see Financial statement for a financial order (Matrimonial Causes Act 1973 / Civil Partnership Act 2004) / for financial relief after an overseas divorce.

If your case is complex and/or high value, there is likely to be a great deal more required including the use of independent experts.

You can start at any time and it is never too early or too late. However, you have to be ready to settle. If you are still angry and unable to look forward you may struggle to resolve matters. The most common times for people to enter into mediation are:

• At the point of separation when there is an acknowledgement that children or financial matters need to be sorted. Starting mediation early means that you are less likely to have become entrenched, and you might be more able to discuss matters constructively and amicably.
• However, for some it is too early to negotiate when they are still coming to terms with the relationship breakdown. Often people need to have moved on themselves before they are ready to negotiate and so, for some people, it may be better to wait a while before going into mediation.
• Ahead of any anticipated court proceedings. The knowledge that a matter is about to enter a court process often focuses the mind and many people are ready to attempt to settle before facing a lengthy and expensive court case. This is often a good time to achieve a resolution.
• During the court process. Many people, once they have entered the court arena, find it frustrating, unsupportive and expensive. People are not necessarily locked into that process and indeed judges are required to consider mediation at all stages of the case. Therefore, the court will be only too pleased to adjourn your court case to allow you to head into mediation, and many couples should take advantage of this.
• Ahead of a final hearing or court trial. By this time all evidence has been gathered and this could be an ideal time to have one final go at agreeing things before a judge imposes their decision on you both. Thousands of pounds in legal fees could be saved if only couples took the opportunity to mediate before embarking on an expensive and traumatic final hearing.

• Financial matters arising from separation (including complex financial matters, dealing with companies, trusts, pensions etc);
• Child arrangements (including who the child lives with, relocations, education and maintenance);
• Cohabitation disputes (including what should happen with a property after a relationship breakdown); and
• Pre- and post-nuptial agreements setting out how assets are to be divided on relationship breakdown.

Yes, complex financial matters can be resolved in mediation. That is my speciality. I have dealt with mediation cases where the marital assets have been valued up to £30 million and also where there have been trust funds with assets in the hundreds of millions. Indeed, there are many examples of high value cases reaching the High Court and even the Court of Appeal where judges have time and again told the parties that they could have resolved their case in mediation and avoided tens of thousands of pounds (and more) in legal fees.

Ultimately, whether mediation is the right solution for you will depend on your individual circumstances, but a concern that financial assets might be complex should not be a bar to you exploring if mediation is a viable option.

The process begins with a Mediation Information and Assessment Meeting (a “MIAM”) This is so that I can find out what your case is about and to assess whether it’s suitable for mediation. I will meet each of you separately at this stage.

If mediation is not suitable for your case, I will discuss what other options are available to you.

If your case is suitable for mediation, you will each be sent an Agreement to Mediate and invited to arrange a joint meeting.

A MIAM is a Mediation Information and Assessment Meeting hosted by an accredited mediator (me) who will provide you with information about what mediation is and how it works. I will also provide information about the alternatives to mediation, such as collaborative practice and arbitration.

I will ask about:

• The relationship between you and how you previously dealt with areas of conflict;
• What the issues are that you wish to discuss;
• Any concerns you may have about the process; and
• What you hope to achieve.

Even if your preference is to go to court you won’t usually be able to start court proceedings without first having attended a MIAM. The mediator will need to have signed off your court form before you are able to proceed.

Following the MIAMs if you both agree to mediate I will set up a first meeting with you jointly. That and subsequent meetings normally last around two hours. At the end of the session I will task you with information required for the next meeting and schedule it. How many meetings you need will be determined by your ability to reach agreement on issues and depend on the complexity of your case. As an average couple normally need somewhere between three and six sessions.

I will liaise with you to arrange the joint meetings at a time that is convenient for everyone. Normally the time and date for each session will be agreed well in advance so that everyone can fully prepare ahead of the meeting and know what to expect.

For many people the idea of sitting down with their ex can be daunting. A full assessment will be made by me ahead of any such meeting to ensure it is suitable. Mediation can take place without ‘face to face meetings’ . Look at the section on types of mediation

Where finances are complex, it can be really helpful to bring in independent third parties to assist. These are sometimes referred to as ‘financial neutrals’.

For example, in cases where there are complex pension issues either an IFA or a pension actuary can be brought into the meetings in order to discuss the options available to you. Similarly, an accountant could be brought in to advise about the value of a company or a tax expert to advise about the taxation consequences of any proposed agreement.

It might also be helpful to bring in divorce or life coaches to provide the necessary tools and emotional support to enable both of you to get the most out of the process. Also, many couples get stuck and even with legal advice are not able to agree on what would happen if the matter did end up in court. At that point I can bring in a financial barrister or part time judge to assess your case and tell you what is likely to happen if the court is asked to determine matters.

So, it is clear that with all this potential external assistance there is no need to look outside of mediation in order to reach an acceptable outcome.

Not necessarily. Mediators offer either face to face or online mediation. If the online model is to be used then I can mediate with couples anywhere in the country and also internationally.

International mediation has proved particularly popular. Whereas in the past where one person has been abroad, it has been difficult to negotiate a settlement either through a court process or in occasional mediation, this can now be arranged very quickly and there are few barriers to prevent real progress from being made.

I always recommend that you seek legal advice from your own solicitor alongside the mediation process. Unlike the mediator, your solicitor will be able to advise you independently about what you might expect in terms of the likely outcome of your case. With this information to hand, you may find it easier to reach a settlement.

If there are disagreements over arrangements for your children then, depending on their age and maturity, they may need to be involved. Where appropriate I normally appoint a child accredited colleague to meet separately with your children to ascertain their wishes and feelings and to feed this back to us. For effective settlements it is important to hear their voice in the mediation. None of this will take place unless everyone agrees it is the right course of action. Some mediators will see children themselves but I think it preferable to have another mediator do that and share their thoughts with us.

Discussions in mediation are held without prejudice or on a legally privileged basis. This means that what is said in mediation is confidential, save for some limited exceptions (which include sharing the information and discussions with your solicitor so that you can obtain legal advice). The contents of those conversations must not be disclosed to a court.

Disclosure provided in mediation is not however privileged. This means that although negotiations and general discussions remain private, any factual information you provide relating to your financial circumstances, such as bank statements, can be relied on by your partner in open correspondence, or even litigation.

If an agreement is reached in mediation in relation to financial matters, I can draw up a document known as a memorandum of understanding (MOU), which summarises the agreement you have reached. Alternatively, if your solicitors have been kept appraised of developments throughout the process it may be possible to just summarise the outcome for them. If you are keen to progress matters quickly another alternative is to bring your lawyers in to the final session and if agreement is reached get them to draft a consent order which can be signed and then filed with the court. That is the point at which the agreement becomes legally binding.

This is not an exhaustive list but some of the benefits of mediation are:

• It’s a voluntary process, which means you only commit because you want to. Unlike court you cannot be forced to do anything;
• It is usually, but not always, a cheaper method of resolving disputes;
• It is less confrontational than court proceedings;
• The timescale can be set by you both, providing maximum flexibility;
• The outcome you will have agreed to will be decided by you and not imposed by a court;
• It tends to cause less damage to relationships – particularly important if you have children;
• Negotiation is totally confidential and therefore couples can negotiate freely without fear of saying something that could damage or compromise your position should the matter later have to be resolved by a court.

Mediation is not the right process for everyone. It is important for you to understand some of the potential negatives to this process before you enter into it. These are:

• It is voluntary and therefore you cannot proceed if one of you (or indeed the mediator) wants to end it ;
• There is no formal timetable and so matters could be dragged out if one person is slower and less cooperative than the other;
• There is no way of forcing somebody to produce information if they do not wish to do so. In those circumstances if I think the information is necessary to assist I may need to bring the process to an end;
• There is no guaranteed outcome as, unless you both accept the terms, either you or your partner could end the process.

The cost of mediation will vary depending on how many sessions you need to resolve matters and I will discuss this with you and provide an estimate at the MIAM. Time is charged at an hourly rate and information about potential costs are included within the agreement to mediate.

If you are keen to proceed into mediation then simply complete the link and I will get back to you.