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Do we have to go to mediation?

Written by Victoria. Posted in Blog

One of the recent changes that has affected family law, in most of its forms, is the requirement that mediation has to be considered, before an application can be made to the court to sort out a family issue. This is often frustrating and bewildering to people. Many people feel that:
• They have already tried talking to the person involved, and it can't be sorted out amicably
• They can't even sit in the same room as that person, let alone have a civil conversation
• It won't resolve anything, and it will just delay things even further
• It is expensive and pointless.
Even if you are representing yourself, you will be required to consider mediation as an option unless you are exempt.

What is it?

Mediation is a process where people involved in a dispute can meet on neutral ground to try to resolve disputes between themselves and to make arrangements for the future, by discussing matters together with a trained mediator in order to try to reach an agreement.
Mediation can be used to discuss arrangements for the children and/or to resolve financial matters. Mediation, if successful, may be a way to avoid court proceedings. It can encourage people to make an agreement rather than have the court imposed an order. It is particularly useful where parents wish to discuss the future arrangements for children in an amicable but structured way and it frequently offers a better resolution of issues for the children themselves.
Previously, people had some degree of choice about whether they engaged in mediation. Since the recent changes, however, all people (with some exceptions) have to show that they have considered mediation as a way of sorting things out before an application is issued by the court. A form is needed, from a mediator, confirming that mediation is not suitable before an application for a family arrangements order can be issued by the court staff.
Does this mean that you have to sit in the same room as the other person? No, if you do not want to engage in mediation that is offered, you do not have to, but you do need to show that you have considered it as an option. Mediation is a voluntary process, and you cannot be forced to go, but our experience in family courts since the requirement to consider mediation as an option, proves that some courts are putting considerable pressure on clients to try to sort things out in mediation even when neither party really thinks that there is any point in the process.
There are different opinions as to why there is this pressure from the Government to push mediation as an option – some view it as a cost saving exercise only, since mediation will help to ease the pressure on the court, and to try to reduce the number of litigants in person taking up court time in arguing matters that could be resolved by mediation. Others see it as a means of trying to reduce the acrimony involved in children matters and relationship breakdown. Come what may, if you have a family dispute you are likely to have to try mediation as a first option, so you will need to arrange a meeting with a local mediator for a session by yourself, to discuss the issues and see if it is a suitable case for mediation before any court application can be issued.

Exemptions from mediation

Some people don't have to go to mediation. Those people who have
• suffered domestic violence and who can prove this (there are set criteria for this),
• or where the case is seen as urgent,
• or where there are child protection concerns,
• or have tried mediation within the last 4 months
• or can't find the other person
• or can't find a mediator within 15 miles of home
• or can't get a mediation appointment within 15 working days
• or have a disability that means that they can't find a suitable mediator within 15 miles
Even if the court proceedings are started, the court can refer the parties to mediation once proceedings are underway if it seems that there is a possibility of an agreement being reached which will be helped by mediation.

What happens?

Each party has an initial meeting with the mediator to discuss whether or not mediation is appropriate. This is not a joint meeting. The mediator will assess if the case is suitable for mediation and each party's financial circumstances will be assessed to establish whether they are entitled to help with the cost of mediation appointments. The mediator is completely independent and will have considerable experience and understanding of family law matters. They will try to help the parties to reach an amicable agreement. It is not intended to replace legal advice, however, and the mediator will encourage both parties to seek legal advice throughout the procedure, particularly at the end of the procedure.
Any agreement reached during mediation in relation to financial disputes must be incorporated into a formal order by solicitors represented by each party, in order to be binding and enforceable by the court. The agreement that the parties have reached will be drawn up and sent to the solicitors so that they can advise each party separately. If the parties wished to abide by the agreement, it can be drawn into an order and submitted to court for sealing.

How much does it cost?

Mediation is one of the few areas that legal funding is still available for and for which people can still get legal aid. If one of the parties is eligible for mediation, the other person will have their initial appointment paid for by Legal Aid. To check if you qualify, there is an eligibility calculator at https://www.gov.uk/check-legal-aid. However, private mediation fees will then apply for the joint session. If parties are not eligible for legal aid, the mediator will charge for the mediation. The average cost of mediation is in the region of £500, but this can vary between mediators and the mediators would need is to discuss this with the parties in order to proceed.