When two people decide to separate, there are usually a number of other decisions that have to be made about such issues as:
- How to separate
- What to say to the children
- Who will live where
- The distribution of money and property
Mediation provides an opportunity for you to consider some or all of these matters together and with the help of a mediator, to decide jointly what you think are the best arrangements for you and your family.
Frequently Asked Questions
1. How does it work?
A trained mediator will meet with you both for a series of sessions, in which you will be helped to:
- Make a list of all the matters you wish to consider
- Collect the necessary information
- Talk about the choices open to you
- Negotiate with each other in order to reach decisions that are practicable and acceptable to you both.
- Discuss how you can consult your children appropriately about arrangements you decide to make.
2. What does the mediator do?
The mediator’s job is to act as an impartial third party, helping you to exchange information, ideas and feelings constructively so that you can progress towards joint decision-making. However, the mediator has no power to impose a settlement; responsibility for all decisions remains with yourselves, since you will know better than anyone what is right for your family. What the mediator will not do is advise you about which option is best nor can the mediator protect your individual interests. That is the role of your solicitor and we therefore advise you to engage a solicitor so that you can be confident about the things you agree.
3. How many meetings will there be?
That depends on the number and complexity of the issues, and the amount of co-operation between you. However, as a rough guide you should anticipate between one and two sessions to make arrangements for the children, three or five to sort out financial settlement and between four and seven sessions to cover children, finance and property. Sessions last approximately one and a half hours each.
4. How many meetings will there be?
Details of charges are given on a separate sheet. If however you are eligible for legal aid there will be no charge for mediation. An assessment of your eligibility can be made at your initial information meeting with the mediator.
5. Can mediation cover all issues?
Yes, we offer mediation on everything – children, property, maintenance etc – arising from the break-up of your relationship.
6, Is mediation suitable for everybody?
Sometimes mediation is not the best way for you to resolve your problems. Everyone has an initial information meeting with the mediator to discuss this in more detail. This is called a Mediation Information Assessment Meeting (MIAM).
7. What are the issues concerning the children?
The major decisions affecting the children are likely to be:
- Where they will live
- What arrangements will be made for them to spend time with each parent and other relatives.
- Special provisions, if any, which might need to be made about such matters as education, faith and health.
- The level of financial support required to meet their needs.
- How can they be appropriately consulted?
The mediator, whilst understanding that you may well have quite different views on some or all of those matters, will help you build on your relationship as parents so that you can focus more effectively on your children’s needs.
8. What about the Child Maintenance Service?
Arrangements for child support are rarely a matter for the Courts. The Child Maintenance Service is the government organisation established to replace the Child Support Agency and support parents with arranging child support. The Service operates at three levels. Its main role is to support parents in making their own arrangements and they produce a range of information and a free calculator that can be accessed via the internet (Google Child Maintenance Service or use https://www.gov.uk/calculate-child-maintenance). They additionally offer a calculation service, which is available for a small fee if finances or your situation are complicated. As a last resort they offer a collection service for which a charge is made from both the person paying and the recipient. What many people do is to use the on-line calculator to calculate the amount that would be due and knowing this figure often helps your decision-making.
9. How will money and property be tackled?
If you need to sort out financial matters you will be asked to provide information about what you have (assets and pensions), what you owe (liabilities), your income from all sources and what you expect to spend (as far as this can reasonably be predicted).
This means :
- Making a list of all the money you usually earn or receive over a given period of time (weekly, monthly, etc).
- Making a reasonable estimate of what you would expect to have to pay for in the future, including housing.
- Providing details of any property, savings, shares, insurance policies, pension rights and other capital assets, such as inheritances and businesses/companies in which either or both of you have an interest.
- Identifying loans and debts for which either or both of you are liable.
10. Using this information, you will be helped to negotiate on such matters as :
The Family Home – who should live there, should it be sold and, if so, when and how should the money be divided? (In the case of a rented home, should the tenancy be changed or transferred?)
Child and Adult Maintenance – how much should each contribute towards the living costs of the children (and possibly of the adults?)
Possessions – how should these be shared between you?
Future benefits – does one person need to be compensated for the loss of pension rights, etc?
On all these issues the final outcome will depend very much on your views about:
- What is “fair” (which may not necessarily mean a 50/50 split)
- What is realistic and achievable
- What bests meets the needs of all members of the family, particularly the children.
- How your circumstances might be expected to change in the future.
11. A Contract of Mediation
If you both decide to try mediation, you will be asked to sign an Agreement to Mediate which includes a declaration that you will be open and honest with each other and will not do anything which might pre-judge the outcome of the discussion. Either of you is free to withdraw from mediation at any time. The mediator also reserves the right to withdraw from mediation if it becomes clear for whatever reason, that further progress is unlikely to be made.
12. Is Mediation Confidential?
Firstly, mediation is confidential and secondly, courts are likely to regard the discussions as privileged.
Confidentiality – The mediator(s) will not voluntarily disclose to outsiders any information obtained in the course of your discussions (unless it appears there is a risk of significant harm to adult or child or there is a duty to make a disclosure under the Proceeds of Crime Act 2002). In addition, when you disclose your assets, pensions, debts and income, this financial disclosure will not be confidential as you are both required to make full and frank disclosure.
Privilege – What you say during mediation cannot later be used in Court as evidence. We will ask each of you to agree that all discussions during mediation take place only to attempt to reach a settlement and are on the basis that they are both confidential and will not be referred to in evidence in any court proceedings or affidavit about the same issue. However facts disclosed during mediation are regarded as open. Any facts provided by either of you during mediation about financial matters will need to be verified with supporting documents.. If an agreement is not reached in mediation they can be used by a solicitor as a basis for further discussions.
13. Will we have anything in writing?
At the end of your mediation if you reach a resolution, a “Memorandum of Understanding” and an Open Financial Statement will be drawn up which will set out the joint proposals from your discussions. Your mediator will suggest that you consult your solicitor on the contents so that they can advise you on the personal consequences of what you have jointly agreed. The document will also state any issues on which you have been unable to agree and which may require further negotiations by your solicitor or perhaps a decision by the Court. No mediation document will refer to the way either of you participated in mediation.
The Memorandum itself, or Statement of Child(ren) Arrangements (which relates to the child(ren), is not legally binding, but is intended for your solicitor or yourselves to use in preparing a legally binding agreement, where appropriate.
14. Can any arrangements we make now be changed later?
Some court orders, particularly those of the “clean break” kind where maintenance claims are dismissed, will have a once-and-for-all effect. This is one reason why it is advisable that you have your own solicitor to advise you. Nothing is binding until there is a court order. Other orders, such as those including spousal maintenance, may be changed at a later date on further application to the Court. The Court may also be prepared to consider an application to change an Order relating to the children if the original circumstances have altered significantly. Where no Court Order has been made about particular issues, the arrangement may be changed by agreement between the two of you at some later date.
15. Can the Court impose different arrangements from those agreed?
The final authority always rests with the Court. However, in practice the Court is unlikely to disregard an agreement freely arrived unless:
- It is patently unfair to one of you
- It is clearly not in the children’s best interest
- The facts on which the discussions were based turn out to be incorrect.
16. What happens if we cannot agree on everything?
You may well be able to resolve some issues which can be written down and any areas still outstanding can be clarified. You may then instruct your solicitor to negotiate a final agreement on your behalf. Ultimately if you cannot agree, the Court may have to make the necessary decisions.
You will receive a more detailed explanation at your initial information meeting with the mediator, where you will also have the opportunity to raise any other issues or concerns you have about the process.