Frequently asked questions:
- Is Mediation legally binding?
No. To encourage the parties to speak openly and freely without their lawyers present, the mediation process is confidential. You will need to consult a lawyer to make the mediation outcome binding or open.
- Is Mediation confidential?
Yes but there are 2 exceptions. Firstly, if there is any suggestion of child abuse mediation will end and the Mediator will need to contact the relevant authorities. Secondly, all financial disclosure that takes place in mediation is open and therefore is not protected by the confidentiality rule.
- Will the Mediator speak to the child/children?
It depends. Usually the children are not seen by the Mediator in order to avoid unnecessary distress and anxiety for the children. However, sometimes it can be helpful to see the children and for them to know they are being heard.
When a Mediator sees a child this is called Direct Child Consultation (DCC). The Mediator must have undergone specialist training to conduct a DCC. The Mediator will not pressurise the child/children into taking sides. Instead the child/children can speak openly and confidentially with the Mediator and the child/children can decide how much of what is discussed is relayed back to you.
- What is the cheapest way of dealing with a dispute concerning finances or child issues following a breakdown of a relationship?
Mediation tends to be the cheapest and the quickest way of dealing with such matters. The Mediator generally splits his/her fee between the parties and will provide you with sufficient and relevant information to enable you to make decisions. That means the lawyers do less work and therefore their fees are kept to a minimum. You will still need a lawyer once mediation has ended to review the outcome and where necessary, obtain a consent order from the court.
- Can I get legal aid?
Legal aid is now severely restricted in family proceedings and is usually only granted where there is evidence of domestic violence. However, if you are on a low income, you may still be eligible for legal aid for mediation, which will cover the mediation fees and some legal advice. It should be noted that not all Mediators offer legal aid so if you are seeking legal aid you should make this clear at the outset.
- Do I have to go to mediation?
No. Mediation is a voluntary process so you cannot be forced to go to mediation. However, if you decide you want to make an application to the court for a financial settlement in divorce proceedings or for most children related issues, you must attend a Mediation Information Assessment Meeting (MIAM). At the MIAM, the Mediator will discuss with you the various methods/options available to resolve your dispute and assess whether your case is suitable for mediation.
If you decide to proceed with an application to the court, the Mediator will sign the relevant page of the application form to confirm a MIAM has taken place. If you do not make the application within 4 months of the date of the Mediator’s signature, you will need to attend another MIAM.
- What if I am not confident dealing with finances or have no idea of the financial situation?
The Mediator will help you both understand the financial position and will deal with financial disclosure at an early stage so that you know exactly what the financial situation is. Mediation should proceed at a pace that is comfortable for everyone involved and you are encouraged to ask questions and seek clarification if you are unsure. The Mediator will ensure there is a level playing field for the parties and an equal balance of power.
- Court proceedings have already started. Can I still go to mediation?
Yes. Statistics show that an individual is more likely to comply with an agreement he/she has reached rather than an Order imposed by a Judge. A Judge will usually adjourn a hearing for a suitable length of time so that you can go to mediation.
- Will the Mediator try to encourage us to reconcile?
No. The Mediator works on the basis that the relationship has broken down and focuses on moving the parties forward, separately and apart from each other. If you want to consider reconciliation, the Mediator would signpost you to the relevant organisations.
- Do I need a lawyer before I go to mediation?
No. The Mediator will share information with you to enable you to formulate proposals and discuss the way forward. If all or part of any of the proposals is unsuitable, this will become apparent when the Mediator goes through the proposals with you.
- Can the Mediator give me advice?
No. The Mediator has to remain impartial. The Mediator can share information with you, which usually allows you to progress the negotiations. If you want to take legal advice during the mediation process, you can consult your own lawyer in between sessions. Legal advice and mediation go hand in hand but they will be provided by 2 different sources: the lawyer will provide the legal advice as and when you need it and the Mediator will conduct the mediation and share information with you.
- How long does mediation take?
It depends on the type of case and the parties’ and the Mediator’s availability. In most cases the mediation is completed within a few months.
- How long are the mediation sessions?
Usually each session lasts no more than 1.5 to 2 hours. On average, child mediation requires 2-3 sessions and financial mediation requires 3-5 sessions.