Family mediation is now an integral part of the family justice system in England and Wales. It resolves issues for separated couples outside of court, aiding thousands yearly.
But it wasn’t always this way.
Family mediation in this country is a relatively new phenomenon. It has its origins in the 1970s, although it did not really begin to take off until the early 1980s.
Initially, mediation lacked a standard model, training for mediators, or regulation.
Different organizations independently developed mediation practices, resulting in variations based on location and chosen organization.
There was also no single voice to speak for family mediation, and put its case to government and the media.
All of that changed in 2007 when the Family Mediation Council (commonly abbreviated to ‘FMC’) was established.
The FMC is currently made up of five family mediation organisations:
1. The College of Mediators, which was set up in 1996 and also covers non-family mediation;
2. The Law Society, which is the professional body for solicitors and offers Family Mediation Accreditation;
3. The Family Mediators Association, which was established in 1988 and now has a membership of around 350 family mediators;
4. National Family Mediation, which was established in 1982 and is the largest provider of family mediation in England and Wales; and
5. Resolution, the association of family lawyers, which also offers Family Mediation Accreditation.
The FMC is a not for profit organisation that maintains a professional register of family mediators.
The Family Mediation Council is dedicated to promoting best practice in family mediation, with the central aim of ensuring that the public can confidently access family mediation services that offer high quality mediation provided by mediators who meet the FMC’s standards.
The FMC does not itself provide mediation. Instead, it ensures that all FMC Registered Mediators are: trained to a set standard; follow the FMC’s Code of Practice (see below); hold relevant insurance; are required to carry out training and activities to ensure their continued professional development; receive the appropriate supervision and support; and are required to have a complaints process.
The FMC also provides the profession of family mediation as a whole, the members, mediation services and family mediators with one unified body to make representations to government and other national interests, and promotes family mediation to the media and others.
Central to the FMC is its Code of Practice, which all of its members must follow.
The Code outlines the aims, objectives and scope of family mediation, and also details the general principles of family mediation, as well as the training and standards which can be expected of all FMC mediators.
The general principles of mediation set out in the Code include that mediators must act impartially, and with integrity and fairness towards both participants; that mediators must not disclose information obtained in mediation to anyone else, save in limited circumstances, such as where it appears that a child has suffered significant harm; that the mediator must be alert to the likelihood of power imbalances existing between the participants; and that participation in mediation must be purely voluntary.
You can find the full Code of Practice here.
Our founder Ian Walker, who trained as a mediator in 1996, is accredited by the FMC. Ian has also served as a Trustee of the Family Mediators Association, one of the member organisations of the FMC.
For more information about Family Mediation and the mediation services that Walker Family Law offers, see this page.
Last year the Government ran a consultation seeking views, particularly from family justice professionals and mediation service providers, on resolving private family disputes earlier through family mediation.
The consultation proposed supporting parents to resolve family matters without court involvement, including pre-court parenting programs and compulsory mediation attempts. Encouraging mediation before court application was another proposal, promoting amicable resolution for individuals involved in family matters. Those avoiding reasonable mediation efforts could face penalties, including covering part/all of the legal costs of the other party.
The Government has now published its response to the consultation.
The central proposal in the consultation was the introduction of the compulsory mediation requirement, in appropriate cases.
But the Government has decided against introducing such a requirement.
The Government proposed exemptions to mandatory mediation, particularly in cases involving domestic abuse, seeking feedback on the proposal.
However, many respondents to the consultation were concerned that the proposed exemptions would not be enough to adequately protect survivors of domestic abuse from being required to attend mediation when it is not suitable or safe for them. An example of this is where they do not fully realise that they have experienced domestic abuse.
In the light of these responses the Government has decided not to introduce the requirement “at this time”.
The Government is enhancing mediator roles in dispute resolution by improving domestic abuse screening and mediator training.
The Government aims to encourage mediators to provide child-inclusive mediation and increase the uptake of this service among families. One barrier to this which was mentioned in response to the consultation was that some mediators have been unable to apply for the enhanced Disclosure and Barring Service (DBS) check, to provide some assurance to families that they are safe and can be trusted to carry out child-inclusive mediation. The Government is therefore working with the Family Mediation Council to develop guidance for mediators to help them access this service and ensure they can apply for the enhanced DBS check. They aim to boost child-inclusive mediation by providing guidance, ensuring a safe and secure process for families and mediators.
The Government pledges ongoing support for the Mediation Voucher Scheme, offering £500 towards eligible cases’ mediation costs. By March 2025, the Government’s £23.6 million investment will aid 24,600 families, resolving issues without resorting to court.
Many respondents to the consultation considered that the lack of free, publicly funded, family law legal advice was a barrier to early dispute resolution, saying that providing funded access to early legal advice would improve the information available to parents, allowing them to make better informed decisions about their dispute, and potentially leading to improved outcomes for parents and their children.
Government plans pilot for tailored legal advice aiding parents facing challenges in child arrangements, aiming to support effective resolution. The pilot, which the Government plans to launch in specific regions in England and Wales by summer 2024, will seek to demonstrate the benefits of high-quality legal advice for families looking to resolve their issues through the courts and, where court is deemed necessary, better prepare them for the court process.
Government pilot to evaluate impact of funded early legal advice, aiming to expedite dispute resolution and court-based solutions.
Lastly, the Government has announced that it will expand its ‘pathfinder’ courts pilot. Pathfinder courts in Dorset and North Wales pilot an investigative, child-centred approach, reducing adversarial procedures and enhancing support for parties.
The Government says that the pilot will be extended to South-East Wales and Birmingham in April and June 2024 respectively and then, subject to the findings of an evaluation and decisions at the next Spending Review, it intends to roll out the new approach to all courts in England and Wales.
For further information on how we can help, please see our Family Mediation page.
Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.
Please contact us if you require any further information.
We wrote here back in September 2022 about the scourge of delay in court proceedings concerning children, with particular reference to private law proceedings between parents regarding arrangements for their children.
Sadly, the latest statistics show that the scourge of delay in child proceedings, (and in private law children proceedings and public law children proceedings) (i.e. proceedings involving the local authority)) has not gone away.
In fact, the problem in relation to private law proceedings has hardly improved at all.
In December the Ministry of Justice published its latest quarterly statistics for the Family Court, for the period July to September 2023. The statistics showed that in that period it took on average 45 weeks for private law cases to reach a final order, i.e. case closure.
In September 2022 we reported that such cases were taking an average of 46 weeks to reach a final order. That was the highest value since 2014, when the quarterly Family Court statistics were first published.
The Law Society, the representative body for solicitors, warned that the statistics “show a growing crisis in the family justice system”.
Law Society president Nick Emmerson said: “There were more than 80,000 children caught up in the family backlogs last year. We are seeing similar numbers this year. It is unacceptable that thousands of children are waiting almost a year to find out who they will be living with long-term because of delays in the family court system.
“Delayed justice can cause significant harm to the wellbeing of both children and parents by preventing them from having the stability they need to thrive. Research shows that children involved in private law proceedings are more likely to experience depression and anxiety.”
The latest Family Court statistics did not include data for the timeliness of public law cases.
However, such data was included in the annual report and accounts of the Children and Family Court Advisory and Support Service (‘Cafcass’, which looks after the interests of children involved in family proceedings), which were published in December.
The report covers the year to March 2023, and shows that in the final quarter of that year (January to March 2023) the average length of public law care and supervision proceedings was 46 weeks, which was 10 weeks longer than reported for the same period in 2020.
It should of course be noted that the Children and Families Act 2014 introduced a requirement that public law proceedings should be completed within 26 weeks, a target that is clearly not being met in very many cases.
Cafcass says that delays “continue to have a negative impact on children”, and that: “Delay for children as a result of longer case durations is now the single most pressing issue for the family justice system.”
Cafcass reports that it has prioritised reducing delay, although an Ofsted inspection of Cafcass in January 2023 concluded that delayed proceedings in most instances are outside of Cafcass’ control, citing a range of reasons, including a lack of court time, constrained court administrative capacity and local authority delays.
Sadly, there is little that families involved in public law proceedings can do to reduce delay in their cases. As Ofsted indicated, the answer primarily lies with providing greater resources for courts and local authorities.
But whilst similar considerations apply regarding court resources in private law proceedings, parents involved in such proceedings are able to take steps to reduce delays.
For one thing they can ensure that they comply with the timetable set by the court, in particular for filing evidence.
But they can also avoid court proceedings entirely, by seeking an out of court solution, for example via family mediation, collaborative family law or arbitration. Resolving matters out of court will not only be quicker for them, but will also of course reduce the pressure on the court system for others.
For further information on how we can help, please see our Expertise pages.
As is well known, the primary piece of legislation concerning the law relating to children is the Children Act 1989. But there has since been other legislation passed in relation to children law, including legislation that amends the Children Act itself. One such piece of legislation, and one of the most important since 1989, is the Children and Families Act 2014 (‘the 2014 Act’).
The 2014 Act is a lengthy statute, running to 140 sections and seven schedules. While we can’t cover all details here, the Act significantly impacted arrangements for children, addressing three crucial aspects.
It has long been recognised that family issues should best be resolved out of court, preferably by agreement.
Since the 1990s, mediation has been recognized as one of the most effective methods for couples to reach agreement.
The problem is that many couples are not aware of mediation, or that their case is suitable for mediation.
In about 2011 this was recognised by the introduction of Mediation Information and Assessment Meetings, or ‘MIAMs’ for short.
The MIAM informs the couple about mediation and assesses the suitability of their case for this process.
But initially attendance at a MIAM was not compulsory.
The 2014 Act changed that by stating that anyone wishing to make an application to the family court must first attend a MIAM, unless they are exempt from doing so, for example because they have been a victim of domestic abuse.
One of the more controversial reforms of the 2014 Act was an amendment to the Children Act.
The amendment introduced a requirement that, when considering an application to the court in relation to a child, the court must presume, unless the contrary is shown, that the involvement of both parents in the life of the child concerned will further the child’s welfare.
The reason that this was somewhat controversial is that it didn’t go as far as some people wanted. In some quarters, particularly those interested in fathers’ rights, it was argued that there should be a presumption that the child should spend equal time with each parent, unless there was a good reason why this should be so.
But the presumption of parental involvement didn’t say that. In reality, it is commonly believed that it had minimal impact on the courts’ decisions concerning children.
The last change in the 2014 Act that we want to mention is perhaps the most significant.
Again, this change amended the Children Act.
The Children Act introduced the terms ‘residence’ and ‘contact’, to replace the old terms ‘custody’ and ‘access’, which were considered to be outdated, particularly the word ‘custody’, which inappropriately implied physical ‘ownership’ of a child.
By 2014, the terms ‘residence’ and ‘contact’ were deemed outdated, with ‘residence’ implying a higher status for the parent with the order. It was thought that this perceived status made it more difficult for parents to resolve matters by agreement.
The Children and Families Act 2014 replaced ‘residence’ and ‘contact’ orders with the ‘child arrangements order’ in the Children Act.
A child arrangements order regulates with whom a child lives, spends time, and has contact, specifying when these arrangements occur.
Thus what was once called a ‘residence order’ is commonly referred to as a ‘lives with’ order. The term ‘contact’, still present in the definition of a child arrangements order, is commonly used for the non-residential parent.
It goes without saying that family law-related issues should be resolved by agreement if possible, rather than through the courts. But often the parties need help to reach agreement. This is where family mediation comes in. Family mediation is a voluntary process of assisted negotiation, where an independent, professionally trained, mediator helps couples resolve issues. Family mediation typically involves a number of meetings between the couple and the mediator. So what happens at a mediation meeting?
Before we answer that we should briefly mention another type of meeting related to mediation: the Mediation Information and Assessment Meeting, or MIAM for short.
Before making an application to the court all applicants must first attend a MIAM, unless they are exempt.
The MIAM is a first meeting with a mediator, to explain how mediation works, and to assess whether the case is suitable for mediation. If the case is assessed as being suitable then the couple can decide whether they want it to be referred to mediation.
Essentially, the MIAM aims to inform those considering court action about mediation’s existence and assess its suitability for their case.
Mediation meetings can involve the couple and the mediator meeting face to face in the same room. They can also take place as an online meeting. It is even possible for the couple to be in separate rooms, if that is preferred.
Exactly what happens at a mediation meeting will vary from one case to another, and will depend upon the type of issue that needs resolution – an issue relating to arrangements for children or an issue relating to finances and property on separation or divorce.
Generally, the mediator assists the couple in identifying agreed matters and resolving issues that require further discussion and resolution.
The meetings are entirely confidential.
Note that even if the mediator is a lawyer they will not provide legal advice, save to indicate in general whether a proposed solution is likely to be approved by the court.
The mediator will however indicate to the parties when they might need independent advice upon a particular matter. (Note that the parties can take legal advice at any time during the mediation process.)
In the course of the meetings the mediator will seek to ensure that both parties have an equal say, and that any proposed solution is fair to both parties and any children involved.
If the meetings lead to an agreement, the mediator documents it and provides each party with a copy. Note that the agreement is not legally binding, but can be incorporated into a binding court order, if appropriate.
And if the mediation is not entirely successful, the mediator will provide the couple with a written summary of the outstanding matters, and what action the couple should take next.
There are no hard and fast rules as to how long the mediation process will take. The duration depends on the specific case, including the issues and their complexity.
In general, however, the process might typically involve three to five meetings, each lasting between one and two hours.
The meetings will usually be spread over a number of weeks, although more complex cases may take several months.
Note that mediation concerning finances and property may take longer, as the couple will need to make full disclosure of their finances before the mediation can proceed, so that both parties and the mediator know exactly what is involved.
For more information about family mediation, and how we can help, visit our family mediation page.
The 16th to the 23rd of January is Family Mediation Week 2023. Family Mediation Week is organised by the Family Mediation Council (‘FMC’), a not-for-profit organisation that maintains a professional register of family mediators. Its aim is to raise awareness of family mediation and to highlight the advantages of mediation for separating families.
Our Family Mediators are Lisa Holden and Ian Walker, both of whom are accredited to provide Family Mediation by the FMC.
So, what exactly is Family Mediation, and what are its advantages?
The first thing to note is that mediation is nothing to do with reconciliation. This is a common misconception, probably caused by the similarity of the two words. Mediation is for resolving problems after it has become clear that the relationship has ended.
Mediation is a way of resolving disputes over arrangements for children or finances following the end of a relationship, without having to ask a court to decide the matter.
Mediation is a process where the dispute is referred to a trained mediator, who will mediate between the parties, to help them resolve the dispute by agreement.
Mediation is purely voluntary – it will only take place if both parties agree, and will stop if either party wishes to withdraw from the process.
The process will usually involve one or more face-to-face meetings, and if agreement can be reached the mediator will prepare a written summary of the agreement at the end of the process. The agreement may then need to be incorporated into a court order.
The mediator cannot provide legal advice to the parties, but the parties may seek legal advice of their own, at any stage of the process.
Mediation does involve a fee, but legal aid is available, subject to means.
Mediation has many advantages over going to court, including:
Less conflict and stress – Using an adversarial process, contested family court proceedings can greatly increase the conflict between the parties, and be extremely stressful for all concerned, including any children. Mediation, on the other hand, helps to reduce conflict, and is far less stressful.
Improves communication – Mediation encourages the parties to deal with each other, which can lead to long-term improvement in the way that they communicate. This is especially beneficial where there are children, as obviously the parties may need to communicate with one another for years to come.
Quicker and simpler – The mediation process is much quicker than going through court. Contested family court proceedings relating to child arrangements, for example, are currently taking 45 weeks on average. Mediation will usually take much less than that. And the process is far simpler than the complicated process involved in court proceedings.
Cheaper – As mentioned above, mediation does involve a fee, but it is still going to be very much cheaper than contested court proceedings.
Flexible – Court proceedings involve a set timetable, imposed by the court. In mediation, on the other hand, the process is entirely flexible, with the parties setting the agenda, for example as to how many meetings will be involved, and when they will take place.
The result you want – Mediation is all about resolving disputes by agreement. This means that you will get the result you want, rather than have the court impose a decision that neither party may want.
Private – Lastly, the mediation process is completely private and confidential. You do not have to ‘air your dirty linen’ in a courtroom, or risk confidential information being made public.
In short, if you are involved in a family dispute in connection with arrangements for your children or sorting out finances on divorce then you should give very serious consideration to referring the dispute to mediation, rather than going to court.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce, child law, and arbitration. For expert advice, please contact the team.
Mediation is a growing form of alternative dispute resolution and provides a much needed and beneficial alternative to the court process.
Introduced to the UK some 20 years ago, it has evolved to become in part, a regulated branch of the legal profession. Currently only accredited mediators, i.e. mediators who are accredited with the Law Society or Resolution, can sign court applications to certify that mediation has been attempted.
Furthermore, only accredited mediators can conduct legal aid mediation and secure a contract with the Legal Aid Agency to do so.
However, as the term ‘mediator’ is not a protected name in the same way as ‘solicitor,’ there are any number of people who can call themselves mediators and open for business offering mediation to the unsuspecting public.
An experience of ‘bad’ mediation can be extremely damaging to clients and can create additional work or lead to applications to court when perhaps ‘good’ mediation could have resolved the issues.
But what redress can a party who has suffered a poor mediation service do? There are unfortunately many examples of unsatisfactory mediation. For example a mediator falling asleep during negotiations, investing in an asset owned by one of the parties, excessively criticizing one party in front of the other, ignoring significant assets in dispute, showing bias or proffering incorrect legal advice.
Obviously, ceasing to take part in the mediation and writing a letter of complaint is a first step. But what if the party feels that real damage has been caused by the mediation experience and would like financial compensation.
For example, a client attended mediation with his ex wife to discuss the financial issues. They exchanged financial disclosure. At the first joint meeting, the mediator got out the flip chart and asked what the wife wanted. The mediator wrote the wife’s wishes on the flip chart. She then turned to the husband and asked how he was going to make wife’s wishes come true. Mediation broke down, husband complained of bias, but did not get any apology or refund. He has since issued a Form A as wife refuses to negotiate believing that she is entitled to have what she wants.
If the husband in this situation sued for breach of contract, would he be successful and if so what damages could he hope to receive? Could he prove that the mediator installed such a belief in wife that it made litigation a foreseeable consequence which could otherwise have been avoided, or did wife have that belief anyway and nothing would ever have changed her mind?
Therein lies one of the many difficulties in taking legal action against a mediator. In fact there are any number of obstacles facing a prospective claimant. Mediators do not make decisions for clients, yet have great influence on how the constructs of the process happen, eg who is in the room, how mediation is conducted, the amount of time given to each party to speak, agenda setting. Research has shown that world wide there are few if any reported cases of any mediator ever being sued and of those cases, there are no reported cases of a mediator ever having to pay damages.
Yet, as Oregon Professor Michael Moffitt says in his article Suing Mediators, ‘A mediator who engages in egregious behaviour, violates contractual or statutory obligations, or breaches separately articulated duties should enjoy no legal or de facto immunity from lawsuits. Simultaneously, courts should favour lawsuits from parties who exercised their judgment in terminating an inadequate mediation. Wise policy and respect for autonomy demand deference both to mediators’ subjective judgments and to parties’ decisions regarding their continued participation in mediations.’
One such case is the Australian case of Merigan-James v James, VC 2006. The parties entered into mediation to discuss division of assets, namely a property and a business. The property was valued by several valuers and a view formed as to the valuation. On that basis, the claimant agreed to have 37.5% of the proceeds of sale of the property, respondent the remainder and the business was transferred to the claimant.
The respondent refused to implement the agreement and it later transpired the house was in fact worth some $100,000 less than the figures discussed in mediation. He argued that there had been a mistake of fact and as such the agreement reached at mediation should be set aside. He also felt he had been pressurised into agreeing the terms in order to avoid litigation. The claimant said she felt distressed during the mediation which had been conducted the day after her mother’s funeral.
The judge disagreed that there had been a common mistake during the process, stating that there was a mistake of opinion, not fact and upheld the agreement reached. Although referencing the difficult circumstances of the mediation, this did not negate the agreement reached.
There may be examples of non reported cases of mediators being sued or threated with legal action which have settled out of court but it is not possible to reference these. However, with mediation becoming more main stream, should all mediators have to embrace the same practice with the same accountability for the standards of mediation.
In the article by Melvin A Rubin, an American mediator, he concludes: ‘As professional mediators, we should come to grips with whether we are willing to accept the same responsibility associated with any professional. This responsibility must include ethical standards, with enforceability, and grievance procedures and accepting liability for our own negligence. The people we serve professionally deserve, and need to be aware of, our obligations to them and to understand those remedies that are available. It is time that what we aspire becomes a reality with meaning within the practice of mediation.’
A High Court judgment published last week both highlights and confirms the importance of confidentiality in mediation between separating couples.
Many separating couples now choose mediation as a way of resolving disputes over arrangements for children and finances. Mediation involves one or more meetings with a trained mediator, who will try to help the couple resolve the dispute by agreement.
In the course of those meetings the couple will enter into detailed discussions, often including putting forward proposals aimed at settling the dispute. But, as we will see, sometimes this means saying something that the party will not want repeated outside of mediation, unless the proposal is accepted. In particular, they will not want the other party to use it against them in any future court proceedings.
This is similar to the situation with a settlement proposal put forward on a ‘without prejudice’ basis: if the proposal is not accepted, then the party who put it forward cannot later be held to it.
This may be better explained by an example. Imagine that a party put forward a without prejudice settlement proposal that they would accept a lump sum of £100,000. The proposal is not accepted, and the case goes to court. It then becomes clear that the court is likely to award that party much more than £100,000. The other party wants to show proposal to the court, as evidence that the first party needs no more than £100,000. However, as the proposal was made without prejudice the court will not look at it, or take it into account.
So to the High Court case. It actually involved a mother’s application for the return of her child to the USA, where she and the child had been living.
The parties had previously gone to mediation to try to agree arrangements for the child, and the father wanted the court to be told details of the discussions between the parties in the mediation, as presumably he thought that these would support his case that the child should not be returned to the USA.
The court had to decide whether the mediation discussions should be disclosed.
The judge set out the law on ‘mediation privilege’, as it is called: that discussions in mediation are privileged against disclosure. There are a few exceptions to this rule, for example where an allegation is made within a mediation that someone (particularly a child) is at risk of harm.
However, the father did not claim that any exception applied here. Instead, he argued that mediation privilege should give way to the wider interests of justice, i.e. establishing the truth, and his right to a fair trial.
The judge did not agree. Whilst there was undoubtedly a public interest in the court being able to establish the truth, he said, parties in mediation must be free to discuss candidly all options for settlement and ‘think the unthinkable’, without fearing that their words will be used against them in any subsequent litigation.
As to the mediators themselves, he said that they “must be free to perform their valuable role without fearing they will be dragged into that litigation either by court orders for provision of their notes or to be called to give evidence for one parent and against the other.” Otherwise, he said, the mediation process is likely to fail.
The parties may agree to waive the privilege, so that the discussions can be disclosed, but that had not happened here.
Accordingly, the court ordered that the mediation discussions could not be disclosed.
The case is an important confirmation that discussions in mediation are confidential. Parties in mediation may therefore be reassured that any proposals that they might put forward in mediation will not be disclosed to the court, unless they are accepted by the other party.
The best solution to resolving a divorce or family dispute is of course by agreeing matters with the other party, whether those matters relate to arrangements for any dependent children, finances, or property.
And one of the best ways to sort out matters by agreement is through mediation, whereby a trained family mediator will help the parties come to an agreement, which is both workable and fair to all.
But, despite the fact that mediation has been used to resolve family disputes for more than twenty years, many people going through family breakdown still have reservations about it, doubting that it will be suitable for them, or that it will work.
In fact, family mediation is appropriate for the vast majority of cases. As any experienced family lawyer will attest, many cases settle by agreement despite it appearing at the outset that that would be unlikely to ever happen. Similarly, with the help of an expert mediator, mediation can be successful in the most unlikely cases.
However, despite our enthusiasm for mediation as a method of resolving family disputes, we do acknowledge that sometimes it is not appropriate, and sometimes, despite best efforts, family mediation doesn’t work.
There are a number of situations in which family mediation is not appropriate. Here are some of the most common:
Coercion/other party unwilling to mediate – Mediation is purely voluntary. If one party does not wish to enter mediation, then they cannot be forced to do so. Mediation will not usually be appropriate where one party feels that they have been coerced to attend.
Domestic abuse – Mediation will not normally be appropriate if there have been any incidents of domestic abuse, or if there are any outstanding allegations of abuse.
Urgent cases – If the case is urgent for any reason then it will usually be more appropriate to take the matter straight to court, rather than go to mediation.
Bankruptcy – If the dispute is about money and you or the other party is bankrupt then mediation will not be appropriate.
Involvement of social services – Mediation in relation to arrangements for children will not usually be appropriate if you are currently involved with social services because there are concerns about the safety and wellbeing of your child or children.
Acrimony – To be successful, mediation obviously requires a measure of cooperation between the parties. If this is simply not possible because of high levels of animosity between the parties then mediation is unlikely to be appropriate, unless the mediator is able to address the issue.
Power imbalance – In some cases there is a ‘power imbalance’ between the parties, with one party, for whatever reasons, being the ‘dominant’ one, and the other the ‘subservient’ one. Again, the mediator will try to address this issue, but if they are not successful then mediation may not be appropriate in such cases.
Previous (recent) mediation unsuccessful – Lastly, mediation may not be appropriate in cases where it has been attempted in the recent past, but has not been successful.
Sometimes, despite the best efforts of an expert mediator, mediation is not successful. The mediator cannot force the parties, or one of them, to agree a settlement, no matter how appropriate the mediator may consider that settlement to be.
The mediation may come to an end because one or both of the parties withdraws. It may also come to an end if the mediator does not consider that there is any reasonable likelihood of the parties reaching an agreement, for example because the parties are too far apart, or because one of them is failing to negotiate.
In such a situation then the case will have to be sorted out by the court. It should be noted, however, that mediation can be ‘partly successful’, i.e. some issues are agreed between the parties, reducing the matters that the court has to adjudicate upon.
It should also be noted that, unless agreed otherwise by both parties, everything discussed in mediation is confidential. The court will not be aware of anything that was said or took place during the mediation.
If you would like more information about family mediation and how it works, see here.
