1. You can’t apply to court before you’ve tried mediation.
This is incorrect as all any court expects, and what the protocols demand, is that anyone who is applying to court for a family court order whether it be financial or about children arrangements, should meet with a mediator to find out about mediation. That meeting is the Mediation Information and Assessment Meeting or MIAM. You will be given information about your options and assessed for suitability for mediation. Mediation cannot go ahead if the mediator thinks the case is not suitable or if you don’t want to give it a go.
2. Whatever I offer or say in mediation can be “used against me later”
Not true as the mediation process is confidential. Not even Judges can insist on receiving information about what happened in the process. The only information that could be given has to be specifically authorised by both parties to the mediation.
3. Mediation isn’t appropriate as I need something legally binding.
Mediation is a process in which disputes are resolved. Although the satisfactory proposals reached by the parties in the mediation process are not legally binding, the court is accustomed to making all sorts of consent orders and agreements, and a reduced court fee of just £50 is usually applicable. Solicitors are also accustomed to making proposals legally binding at a much reduced cost, as hefty legal costs are associated with acting for clients who are in dispute.
4. I won’t qualify for legal aid
The mediator will also assess legal aid eligibility if you wish, as everyone is entitled to be assessed and the eligibility is based purely on your financial position. Many clients are eligible even those working full time and owning their own property. The assessment is dependent on income and prescribed allowances, and also capital, some of which can be disregarded if you live in the house you own or if the capital or property is the subject matter of the dispute. If you are eligible the process is free and there is a linked scheme for clients to ask for limited advice or support from a solicitor. The other party will also be entitled to a free MIAM and first session. The assessment for eligibility is based purely on your means.
5. If we can’t agree on our disputed issues the mediator can give us advice.
That’s not right. It is not like a court process where a Judge will make decisions wherever you are unable to agree. The whole idea of mediation is that clients are empowered to be expert in their own disputes so that they are best placed to make decisions. The mediator won’t nudge anyone in any direction because the mediator’s opinion about what you should do can’t assist you. Mediators give lots of information but not advice.
In some parts of the country where mediation is by far the most popular way of resolving disputes, what is “normal” is what the local families think is best. Decisions made by families themselves are more likely to “stick” and once an issue has been resolved in mediation, it is much more likely that any future disputes will be resolved without outside assistance.
6. Mediation isn’t suitable because the parties are not on amicable terms.
That’s another myth. Being less than amicable with each other is no bar to mediation. Many family members in stressful times in their lives find it impossible to be anything other than hostile. Fear and mistrust are bound to be evident in many disputes. In the mediation process, the mediator will however ensure that you are safe and you will not be on your own together.
7. Mediation isn’t for me because I don’t want us to get back together.
The mediation process does not involve counselling and the mediator will not be trying to repair a broken relationship. Rather the mediator is helping families following a relationship breakdown and dispute to enable them to start afresh, dealing with each other in a way that is respectful and productive. Where children are involved in disputes between parents, this will involve the making of a new plan that works best for the children. Parents are the experts in knowing what is best for their children and they therefore know exactly what needs to be in the plan. The role of the mediator is to help them to identify those things together!
8. Mediation isn’t an option because court proceedings are underway.
It is certainly true that the courts won’t want any unnecessary delay in the progress of a court application but the mediation process does not prevent the court making progress. Similarly, being willing to mediate doesn’t prevent an applicant from starting proceedings to ensure that there is no delay.
The mediation process is voluntary and its progress can be made to fit in with the clients’ willingness to attend at any stage of court proceedings. A Judge has the power to direct a party to attend a MIAM whenever that party has not attended one, and indeed the judge will consider this at every hearing.
9. My solicitor says mediation is not a good option for me because mediators do not understand pensions.
In the mediation process mediators do not give advice but they will ask lots of questions of clients during their sessions for many different purposes for example to check for understanding or to see if there is more information that needs to be sourced. That enables the parties to gain a deep understanding with regard to their own pensions with regard to not only the value of their respective pensions, but all the benefits attached to them. They can then identify various options relating to the pensions, and the reality of what each option will mean in practice to each client is discussed, before they decide on a mutually acceptable solution. In a court process, the clients do not always gain such understanding and can be left somewhat unsure of what the outcome means to them individually.
10. I’ve tried mediation before and it didn’t work then so it won’t work now.
Sometimes the timing of a mediation process is crucial. Mediation might not be suitable if the court is needed to assess risk say where serious allegations have been made, or if there are child protection issues. And sometimes with the passing of time it becomes possible for a mediation process to be successful where at an earlier date one party may have found the process just too difficult. We also often hear clients say that a family member “has tried to mediate” and that didn’t work. By attending a MIAM, you have the opportunity to talk to an independent mediator who will explain how the process is not just someone in the middle trying to help. The process is hard work for clients as they start to resolve disputes in a new way that will enable them to resolve further disputes in the future without forms of interventions. The training to be an accredited mediator who can also offer legal aid is exacting and their services are subject to constant scrutiny by the Legal Aid Agency and they must adhere to a code of conduct prescribed by the Family Mediation Council.
For more information about what is discussed in this blog please call us on 01670 528441 or contact us via our website.