What’s Hot On The Mediation Blog?
New Mediation laws will help separating parents and couples to avoid stressful court battles under a new law introduced by the government and effective from 22nd April 2014.
New figures show that 124,420 couples filed for divorce in 2012 but instead of potentially long and costly court hearings couples opted for mediation – a quicker, cheaper option which provides better outcomes. Last year 67% of all publicly funded couples resolved their concerns out of court with a qualified mediator.
The changes mean that separating couples will have to attend an initial Mediation Information Assessment Meeting to see whether it would be better for them to use mediation than to get embroiled in a legal battle over dividing property and agreeing child custody arrangements.
The Government is predicting a sharp rise in the use of mediation for separating couples. To support this move the Ministry of Justice has introduced the new laws in the Children and Families Act 2014.
Family Justice Minister said:
The benefits of mediation are clear – it is quicker, cheaper and leads to better outcomes. That is why we are introducing new laws – which will require couples to attend a mediation information assessment meeting first – to find out more and consider whether it is suitable for them.
‘I want to see separating couples, wherever possible, use mediation. The court should be a last resort when couples are working out how to split assets and arrange time with the children.’
In recent years greater numbers of people have been successfully using mediation – where they are helped to agree the issues between themselves rather than argue it out through lawyers with a judge taking the final decisions.
Helping with all the issues thrown up by a break up is the new government-funded web app Sorting out Separation, which is the first ever online one-stop shop for separated families. Thousands have already visited the site which aims to help separating parents minimise the impact of their break up on their children.
Mediation can be quicker, cheaper and provide better outcomes than going to court. It allows people to explain their concerns and needs in the presence of a qualified mediator, giving them the opportunity to communicate directly with each other, rather than via solicitors or across a courtroom. It is then they, rather than a judge, who decide a mutually acceptable outcome.
The average cost of resolving property and financial disputes caused by separation is approximately ￡800 through mediation for a publicly funded client, compared to ￡5,000 for issues settled through the courts. The average time for a mediated case is 110 days compared to 435 days for non-mediated cases.
Mediation won’t be right for everyone. Some people will be able to sort out their own disputes without using mediation or going to court, and in certain circumstances – such as with domestic violence or child protection – legal action through the courts may be needed.
Mediation Information & Assessment Meetings
As from 22 April 2014, any person who wishes to bring a family matter before the Court will first have to attend a Mediation Information and Assessment Meeting (MIAM). There are some exceptions to this, which we will explain if it applies to you.
The purpose of the MIAM is to give the client a chance to consider what options are available for resolving the issue, and whether Court proceedings are the best way for the family to deal with it. A MIAM is not compulsory mediation; instead it is a statutory meeting to consider whether mediation or an alternative dispute resolution process would find a solution to the existing problem.
How long will a MIAM take?
A MIAM will usually last for one hour.
Who will be there?
Just the client(s) on his/her own, with an accredited mediator.
What will be discussed?
The client will be given time to tell his/her story and explain what it is that needs to be resolved. The mediator will explain the different options available to deal with the issue and how they differ in terms of time, cost and stress. If mediation is a suitable option, the mediator will explain what mediation is and how it works.
How will it end?
The client will be invited to consider what he/she thinks would be the best way forward to resolve the issue. If it is Court proceedings, the mediator will be able to sign the Form needed by the client to bring the issue to Court. If it is mediation, the mediator will contact the other person to invite him/her to attend a similar meeting. If another process is chosen, the mediator will give the client information about how to move it forward.
How much will it cost?
Sole Meeting is £90.00 per client.
The Ministry Of Justice Statement
Issued by the Ministry of Justice and Her Majesty’s Courts Service
“Family mediation can help some people reach a resolution where there is a family dispute. It can help in private law disputes between parents relating to children, with such disputes often best resolved through discussion and agreement, where that can be managed safely and appropriately.”
Guidance on Mediation
Mediation, in particular, can be a flexible, speedy and cost effective way to resolve disputes. It is a confidential process that enables both parties to explain and then discuss what their needs and concerns are to each other in the presence of an independent third party – the mediator – so that they reach an agreement between themselves.
Mediation and Civil Disputes
Mediation can be used to resolve a whole range of everyday disputes – including housing issues, business disputes, small claims, debt claims, boundary disputes, employment disputes, contractual disputes, personal injury and negligence claims as well as community disputes such as nuisance or harassment issues.
Mediation and Family Cases
Mediation can be particularly beneficial where there is a continuing relationship following dispute resolution – such as in family cases. Where decisions about contact and residency of children are being made family mediation can help reduce hostility and improve chances of long-term co-operation where this is necessary, for example in agreeing arrangements for child contact.
Divorcing Couples Face Compulsory Mediation
Divorcing couples will be referred to mediation to sort out most disputes before they are allowed to use the courts.
The measures for England and Wales, focused on child custody and financial disputes, came into force on 6 April 2014. Domestic violence and child protection cases will still go to court.
Mediation is quicker, cheaper and a more amicable alternative to the over-worked family courts.
Nearly every time you ask someone if their stressful divorce battle through the courts was worth it, their answer is ‘no’. “Mediation already helps thousands of people across England and Wales every year, and the individuals that are funding their own court actions are missing out on the benefits mediation can bring.
The new changes in family law will radically reform the system and encourage people to take advantage of the most appropriate sources of help, advice or routes to resolution – which will not always involve the expense of lawyers or courts. Through using mediation everyone will have the opportunity to see if it could be a better solution than going straight to court.
Reported on BBC Radio 4’s Today programme, statistics suggested that more than two-thirds of couples who took up mediation were “satisfied with the results”. “It gives people the opportunity to take their own futures in their own hands.” Under the changes in family law, anyone wanting to use the courts will have to undergo a compulsory mediation information assessment meeting (MIAM) first. We charge £90 for a sole meeting to discuss whether mediation is a viable option to find a resolution to your dispute. If mediation is not a workable option, for example one party refuses to take part in it, the case can proceed to court.
The recent legal aid cuts has meant than many separating couples will be unable to pay for legal advice and court representation which is a lot more expensive than mediation.
The Office of National Statistics report estimates that 42% of all marriages end in divorce. The cost per client for mediation is approximately £800, compared with £4,000 for court costs and the National Audit Office also found mediation was quicker – 110 days, compared with 435 days for court cases.
The family courts in England and Wales are under a tremendous strain due to being inundated with resolving family disputes. The court system is at breaking point and for many parents going through this traumatic experience in trying to resolve their dispute, the situation is also intolerable for the children of divorced parents.
Mediation may not be successful in every case, however direct communication to negotiate on your own terms to reach an amicable solution is certainly a good start. Mediation can be one of the most appropriate source of help, and facilitate discussions to finding a route to resolution – which will not always involve the expense of lawyers or courts.
The Advantages Of Mediation vs Court (Adversarial Litigation)
“While mediation provides the chance for parents to repair their relationship sufficiently to be able to co-parent more positively in future, litigation in a real sense teaches couples to argue and to litigate, sometimes rather too well.”
Mediation has a number of advantages over litigation and arbitration processes:
Successful – over 70 per cent of cases referred to Pam Hatfield Associates Ltd settle.
Quick – mediations can be arranged quite quickly, usually within weeks at a convenient mediation meeting venue in your area.
Cost effective – compared with litigation and arbitration processes, mediation is a less expensive route to resolving disputes.
Gives parties control over the process and the outcome.
Mediation can run alongside litigation or you may prefer to put the litigation or arbitration process ‘on hold’ while you mediate.
Mediation can maintain business relationships far more effectively than adversarial processes.
A wide variety of settlement options can be achieved in mediation over and above monetary settlements.
Informal and flexible – the process to suit clients’ needs.
When is a family mediation settlement binding?
Most family mediation settlements result in a Memorandum of Understanding is drafted by the mediator and agreed by the parties. In practice and most issued cases end with a Consent Order being drafted and signed by the parties. The signed agreement is binding and enforceable.
What Happens At Mediation?
Mediation is a flexible process and no two will ever be the same.
The typical flow of our mediations;
Meet and Greet
The mediator will meet you at our Central London or Kent office or an alternative venue can be arranged that is convenient to both parties. The mediator will explain how mediation may work for you. It is not a trial and the aim is to help you find a solution to the dispute.
Opening Joint Meeting
When everyone is ready, we start with a joint meeting of all the parties and explain the golden rules of mediation which are:
- It is confidential – whatever happens at the mediation meetings the parties agree (in the mediation agreement) to keep it confidential.
- Any discussions you have with the mediator in your private room are confidential – information will not be passed on to the other side without your permission.
- It is without prejudice – which in plain English means nothing that is said at the mediation can be referred to in any court case if the mediation does not result in settlement.
- It is voluntary – any party can leave at any time for any reason.
- A mediator is not a judge – their role is to help you and your opponent find a solution you can all live with. However, there may be times in the private meetings when you will be asked challenging questions about your case – this is simply part of the process.
- There is no binding agreement until it is written and signed by all the parties.
The clients are invited and encouraged to make an optional opening statement. This is your opportunity to explain your view of the case to your opponent. You can do it yourself, ask your representative to do it or you can both do it. You might want to tell your opponent some or all of the following:
- what you want to achieve at the mediation;
- how you feel about the dispute and how it has affected you;
- why you think the parties are in dispute;
- why it is in their interests to resolve the dispute;
- how you think the dispute could be resolved (bear in mind the other side have to agree to any settlement).
Each side has the opportunity to respond. Parties can ask questions if there is anything they do not understand about their opponent’s case although neither side is obliged to answer any questions. The mediator will also ask some questions to identify exactly what the issues are.
The mediation meetings will vary depending on the matter in dispute. In commercial and civil mediation, some clients prefer a private meeting room with some privacy to discuss the issues within their organisation, and then reconvening to join the joint meeting. The mediator may visit one party at a time for further confidential meetings. These meetings help the mediator find out what the parties really want and explore the suggested solutions. The mediator is often instructed to pass offers between the parties. This will continue until we hopefully find a solution.
Further Joint Meetings
It is very common for the mediator to ask the parties to meet together again during the course of the mediation. Sometimes the parties are all together, sometimes it’s just the lawyers and sometimes just you and the decision maker on the other side. The mediator may only apply this technique if they think it is going to help move towards a settlement.
Memorandum of Understanding
The Memorandum of Understanding is a document prepared by the mediator stating the proposed agreement.
The Clients Guide To Mediation
Mediation is a way of settling your dispute with another person, company, organisation or public body.
It involves negotiation between you, your opponent and, if instructed, your lawyers. What makes it different is that you and your opponent invite an impartial mediator, to help you resolve the dispute.
A mediator is not a judge. Decisions are not based upon presentation of who has the best case or who is right and who is wrong. Instead mediator works with all parties to help them find their own solution to the dispute.
If, and only if, all parties agree to a settlement then a binding agreement will be written up and your dispute will be resolved. Because you have to agree to any settlement you can never “lose” at mediation – if you don’t agree there is no deal.
Mediated solutions are often “common sense” or “commercial” agreements instead of “legal” solutions which a court could award.
Parties are not always “happy” with the settlement but are prepared to accept it because:
- Parties are not always “happy”…..
- it puts an end to the stress caused by the dispute;
- it saves further legal costs (including paying an opponent’s costs if you lose at court);
- it saves the time that would be wasted on preparing for litigation;
- it removes uncertainty about the outcome;
- it is their solution, not one imposed by a judge or arbitrator;
- the solution can be designed to preserve important future relationships – there does not have to be a winner and a loser.
3 Tips For Clients To Getting Great Results At Mediation
Great results at mediation do not occur by accident. To help increase the chances that you the client gets the best out of mediation:
- Know what you really want.
- The impartial mediator will assist you to get that.
- Know when to walk away.
Know What Your Client Really Wants
If you are representing a client in a money claim you may assume they want as much money as possible. That may well be the case, but have you asked them? One of my first questions to any party in a mediation is “what do you want?”. It may reveal something more than just a money settlement. One of the advantages the mediator has over a judge is that the mediator can help parties find solutions which involve far more than just the payment of money.
The Mediator Is Here To Help You
Negotiations often stall because the parties are failing to communicate their positions effectively. Splitting up can be an incredibly emotional time. This can be confusing and the future may seem uncertain as assets are divided and children have to share two households. It is important to use the mediator’s experience for assistance with these problems. The mediator will not direct in terms of decisions, but will make sure you have considered all the options and their pros and cons – the decision of course is always yours.
Know When To Walk Away
A mediation isn’t necessarily a “failure” if no settlement is reached. The important thing for our mediators is helping the parties communicate their best offer to each other. The fact that they don’t settle means that, having been well advised by competent legal experts, they prefer to ask a judge to resolve the issue for them.
What If Mediation Fails?
What do you do if your mediation fails? Who pays the costs of the failed mediation? What happens to any legal proceedings? Can you return to mediation?
Leaving Offers Open
If at a mediation all parties acknowledge that no further progress is going to be made the mediator will ask each party to leave its last offer open for a period of a few days. Why? Because parties to disputes often reflect on their position after a mediation when they are away from the dispute and have time for quiet reflection. A considerable proportion of mediations that do not settle on the day settle very shortly afterwards. The mediator will therefore keep in touch with the parties to ensure they still have an easy method of communication should they wish to resolve matters.
Narrowing The Issues
Although settlement may not have occurred, the parties should come away from the mediation with a clear understanding of their opponent’s position and the issues which remain outstanding are likely to be fewer in number and much narrower than they were at the start of the process. Although participants often complain frustratedly at the end of a mediation that they have “wasted their time” that is rarely the case.
Return To Litigation
If legal proceedings were already under way they can continue. Anything that was said or offered or conceded during the mediation was without prejudice. That means neither party can rely on it in the legal proceedings.
The Mediator’s Fee
The fee is paid in advance of the mediation. The question arises whether or not you can recover your fees from the other side if your case is ultimately successful at court. The answer to that depends entirely on the wording of the mediation agreement you signed before the mediation and you should make sure you understand it before signing.
Ministry of Justice Statement:
Major overhaul to reform family justice system
Children and Families in England and Wales will benefit from major reforms to the family justice system which will tackle delays, streamline processes and rebuild trust.
In the government’s response to the recommendations made by the independent family justice review panel, ministers have outlined their plans to reform the system to help strengthen parenting, reduce the time it takes cases to progress through the courts, and simplify the family justice system.
Shared parenting for the best interests of the child:
The changes in education and the introduction of parenting agreements which the review recommended will help ensure better recognition of the joint role of parents within wider society.
We also accept the need to clarify and restore public confidence that the courts recognise the joint nature of parenting. We will therefore make a legislative statement emphasising the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child’s best interests. The government is mindful of the lessons which must be learnt from the Australian experience of legislating in this area, which were highlighted by the Review and led them to urge caution. We will therefore consider very carefully how legislation can be framed to ensure that a meaningful relationship is not about equal division of time, but the quality of parenting received by the child.
Speeding up care and adoption cases by reforming the public law system and increasing transparency. We have already begun to publish data on the timeliness of court cases so we can see where delays are occurring. We will introduce legislation at the earliest opportunity to enable a six month time limit to be set and wherever possible we expect cases to be completed more quickly, while retaining the flexibility to extend complex cases where this is genuinely in the children’s interest.
Simplifying the family justice system to help separating couples reach lasting agreement speedily, if possible without going to court. We will make it mandatory for separating parents who propose court action to resolve a dispute about their child to have an initial assessment to see if mediation is something which would be suitable instead, to help them agree on the arrangements for their child. We estimate that we will spend an extra £10m a year on legal aid for family mediation taking the total to £25m per year (although we have placed no upper limit on this figure). We will also examine how to give the courts more robust enforcement tools to combat failure to comply with judgments.
Driving culture change and better cross-system working through the establishment of a new family justice board, accountable to ministers, made up of senior figures representing the key organisations who play a role within the system and who will have a clear remit to improve performance.
Former Justice Minister – Secretary said:
The reform of family justice and child protection is a critical priority for Government. Our reforms are ambitious and system-wide and particularly tackle the crucial problem of delay.
‘More use of mediation, more effective court processes and more efficient provision of advice will help to create a family justice system which can better resolve these difficult emotional problems in the best interests of children and families.’
Former Children’s Minister said:
‘It is unacceptable for vulnerable children, who come into the court system through no fault of their own, to be waiting an average of 55 weeks for a decision about their future.
‘The introduction of a new six month time limit on care cases sends a clear signal to everyone involved in the process that we want to see radical improvement. Speeding up the court system, and getting earlier decisions about a child’s future, will help ensure that more children are found loving homes more quickly.’
‘On the issue of shared parenting, we accept the need to clarify and restore public confidence that the courts properly recognise the joint nature of parenting. We will be legislating to emphasise the importance of children having an ongoing relationship with both their parents after separation, where that is safe and in the child’s best interests.’
Former Family Justice Review Chair, said:
‘I welcome the government response to the family justice review. The review presented the government with a bold and challenging agenda for change. I am pleased the government have accepted the overwhelming majority of our recommendations. The result should be to reduce the long delays that are so damaging to children and families and to help separating couples sort out their issues for themselves to the benefit of their children.’
Other key commitments in the government’s response are:
- to consider how parenting agreements could be used to emphasise the need for parents to consider how the child can maintain a relationship with other close family members, such as grandparents
- to reduce expense and delay caused by the excessive use of expert reports, strengthening their quality and ensuring only essential reports are commissioned
- to reduce the amount of time spent by judges and courts scrutinising care plans, focusing instead on the core or essential components when making care orders
- to bring court social work closer to other court services by transferring Cafcass sponsorship to the Ministry of Justice;
- to create a single family court across England and Wales, with a single point of entry, to simplify the system and make it more accessible for families using the system.