Mediation matters in family disputes

Carla Ditz looks at the current perceptions of mediation and why it remains largely unrecognised and perhaps underappreciated by couples as a means to resolve disputes

On 11 January 2016, the Family Mediators Association (FMA) marked the start of Family Mediation Week. The drive behind this event was to inform, connect people, and highlight the benefits of mediation in family disputes.

The reality is that many couples experiencing family breakdown or disputes in relation to children believe that acrimonious court battles are the norm. Unless the parties are advised by solicitors or undertake their own research, they are unlikely to consider mediation as a means to resolve matters. 

Together with the Ministry of Justice and other professionals and organisations, the FMA is seeking to change this, raising awareness and connecting individuals with those who ?can help.

Five themes were identified and promoted during Family Mediation Week: 

• Resolving conflict;

• Financial sense;

• Parenting together;

• Children’s voices; and

• Mediation works.

A series of articles, blogs, videos, and information pages was available to enable individuals to achieve a greater understanding of what mediation has to offer. ?These can be found at www.familymediationweek.org.uk.

Unfortunately, mediation is often perceived as the less attractive option, for example, where one party feels that their voice will be drowned out by the other, or that the mediator might take the side of their former partner, or where the parties believe their circumstances are ‘too ?complex’ for mediation. 

In fact, mediation promotes a faster, more open, and often more revealing process. Mediator David Allison highlighted in his FMA blog ‘Resolving financial disputes in mediation – the myths’ that mediators need to challenge disclosure provided in mediation: ’There is the advantage that answers provided in the room can be challenged in the room.’

Mediators are trained to be impartial intermediaries who facilitate difficult conversations and work with both parties to reach a sensible and workable outcome. It is, however, correct to say that mediation is not necessarily suitable for all cases and, as a voluntary process, it requires willingness from both parties to be effective. 

Benefits of mediation

The main benefit of mediation is that it avoids the need for parties to go through the stresses and strains of a court battle. Importantly, couples are more likely to stick to an arrangement if they have played a part in the structure of that arrangement and where it has come about by agreement. Mediation leaves the parties in control, as opposed to a judge-led decision, and is more likely to leave a parenting relationship intact and a couple on good terms going forwards.

Not only is the process likely to be much faster than court proceedings, but it will also be much cheaper – typically 10 per cent of the cost of traditional litigation or less – and take two or three months rather than 12. 

Finally, while children over the age of ten have the right to be heard in family law proceedings, the ‘voice of the child’ remains muffled in many cases. Appropriately trained mediators seek to improve the outcome for the family as a whole by speaking directly with children (where appropriate and with the consent of the parents and child involved) in a much more sympathetic and less intimidating environment. 

Couples going through mediation are inevitably experiencing one of the hardest and most daunting periods of their life. Mediation offers a non-confrontational, controlled, and protected environment in which to have a dialogue about personal family matters, whether this relates to finances or children. 

Stressing the importance of dialogue to how parents manage separation, mediator Ruth Smallacombe states in her blog ‘A childhood in conflict (or court) or a chat with a family mediator’: ‘How you handle things now will become part of the story of their childhood, who they are, and who they become in the future.’ 

It remains to be seen how many couples will opt for mediation over other options at times of family breakdown. While the government has been seen to promote mediation, and indeed force individuals to consider mediation by attending a mediation information and assessment meeting prior to issuing proceedings, it remains a voluntary process taken up by only a minority of couples, and requires commitment from both parties and everyone who is supporting them, including their legal advisers. 

As the courts become overwhelmed by the volume of cases and the expense of litigation remains high, the tide may well turn, with mediation proving a more attractive option for many couples.

Carla Ditz is an associate solicitor at Family Law in Partnership @FLiPltd flip.co.uk