How can mediation help with our separation?
Mediation helps two (or more) people come to an agreement on something they are having difficulty sorting out themselves. The mediator is completely impartial and is not on anybody’s side. Their job is to facilitate discussions, stick to an agenda, and keep conversations as calm and constructive as possible. The goal is to support you all to find an agreement that you all can work with.
When you are separating, the main areas which are usually difficult to sort out are about money, how to divide your assets and arrangements about your children after you separate. Mediation can help you come to agreement about all these and more.
It is usually better to try to sort things out through mediation before you go to a solicitor. In most cases, you will not be able to start a court case unless you have considered mediation. At the very least, you will have to prove to the court that you have attended a MIAM (mediation information and assessment meeting).
In some cases – if you have been the victim of domestic abuse, for example – you could be exempt from having to go to a MIAM before you go to court.
If you think you will have to take your case to court but you don’t know if your former partner will agree to mediation, the best thing is often to contact a mediator and arrange to have your MIAM. You will be able to talk confidentially to the mediator about your concerns. The mediator will then invite your ex-partner to have a MIAM – you will not be expected to persuade them yourself. Although you cannot force your former partner to come to mediation, if they refuse the mediator’s invitation, the mediator will then be able to give you the certificate you need to be able to start a court case.
It is always better to if you can reach agreement through mediation. You will find it less difficult to resolve your differences, it is nearly always much less stressful, and you will certainly spend less on legal fees.
This family mediation leaflet on GOV.UK gives you more information on how mediation works.
If you feel anxious or at threat from your partner, you need to get help.
You do not have to go through the mediation route to help end your relationship under these circumstances.
You can contact Refuge or Women’s Aid (0808 2000 247) at any time.
If you are a man who is suffering domestic abuse, call Men’s Advice Line (0808 801 0327). Lines are open Monday to Friday from 9am to 5pm.
If you want help to decide what you can do next, contact Citizens Advice.
Is mediation free?
No, although it is a much quicker and cheaper alternative to going through the courts. One thing that is different with mediation is that, unlike many other legal processes, legal aid is available for people on low incomes. If you qualify, your legal aid will pay for:
- the MIAM introductory meeting. Legal aid will pay for both of your MIAMs, even if the other person is not eligible for legal aid;
- the first mediation session for both of you;
- the second and all subsequent mediation sessions. This only covers the costs of the person who qualified for legal aid. The other person will have to pay their own costs if they do not qualify for legal aid themselves;
- certain work by a solicitor after your mediation has been completed. This could be to make the agreement you have made with your ex-partner legally binding so you both have to stick to it by law.
You can find out here on GOV.UK if you might qualify for legal aid.
I don’t qualify. How much will mediation cost me?
Direct Mediation Services charges £135 per person for a MIAM carried out during normal working hours, and £135 per person per hour of mediation sessions. How many mediation sessions you will need depends on how many things you do not agree on and how complicated your situation is. Your mediator will be able to give you an idea of how many sessions you are likely to need when you have your MIAM, but many people manage to come to agreement in two or three sessions with a mediator’s help.
Read more about who pays for mediation in our blog.
Do I need to prepare for my mediation?
It is a good idea to think about what result you would ideally – and realistically – like from your mediation before your MIAM. Mediation has a better chance of success if you spend the time in your sessions focusing on the things you have very different opinions on.
For example, if your disagreement is about contact with your child(ren), how much contact have you had up to now, and how much would you like going forward? Why do you think your ex-partner is not agreeing? What do you think you could offer to do to put their mind at rest so they can agree?
If you are trying to sort out money or property, what do you think is a fair split? Why do you think it’s fair to ask for what you are asking for? You will have to fill out form to disclose your full financial situation when you start mediation to resolve these sorts of disagreements. You will need to include everything to do with your finances, for example:
- what your total income is – for example, from all work or casual jobs or benefits
- how much your living costs are – such as transport, electric, water, gas and food
- how much you have in your bank accounts – whether they are in joint names or just in your name, even if your ex-partner does not know about them
- insurance policies or savings schemes
- money you owe to other people – e.g. bank loans, mortgage, other lenders, loans from family or friends, catalogues
- property you own. This also includes things like a caravan, cars, motor bikes – even if they are just used for hobbies.
- if you have a pension scheme through work, the value of this also needs to be included
You will need to get proof of some things – for example, 3 months pay slips, 3 months bank statements. We have a form here which might give you some ideas about the sort of details you need to think about.
It is very important that each of you are completely honest about your finances. Any agreement you finally reach might not be valid if either of you is later found to have hidden something. You or your ex-partner might even be able to go to court to get a share of anything that was not disclosed.
What happens during mediation?
You will first have your introductory meeting – the MIAM – with the mediator. This meeting is just with you and your mediator. It is confidential and your ex-partner will not get to know what you have talked about in this meeting. This is your chance to explain how you see the situation, how it has come to the present position and what you want to get out of mediation. Your mediator will then invite your ex-partner to attend a MIAM of their own. This is also confidential and you will not get to know what was discussed. After that, providing each of you (you, your ex-partner and the mediator) agree that mediation is a suitable way to try to agree things, you will then agree a date and time to start your mediation sessions. This is where you and your ex-partner will meet together with your mediator to discuss the things you disagree about.
If you feel uncomfortable being in the same place as your ex-partner, you can both be in different rooms and the mediator move between you. This is known as ‘shuttle mediation’. There is less time available in each session to actually talk, so it usually takes longer with more sessions, making it more expensive.
We do most of our mediation online using Zoom, WhatsApp, FaceTime or similar methods. This can be an effective alternative if it is difficult for you to be physically in the same place as your ex-partner.
The mediator is not qualified to give you legal advice and they will not make any decisions for you. What they will do is:
- listen to both of you and the way you see things – they are completely impartial and won’t take sides
- help to create an atmosphere which is calm and where you are able to come to an agreement that both of you are happy with. They will not let either of you dominate the discussion or be rude or offensive.
- suggest practical things to help you reach an agreement on things. They have a lot of experience of things that have worked for other people in similar situations and that you might not otherwise have thought of, but which might work in your situation.
Everything that you say during mediation is confidential. After every session, your mediator will send each of you a summary of what was discussed.
Separation is often difficult for children to cope with. Your mediator will keep your children’s needs and interests in mind and focus on what is best for them. Sometimes the mediator might talk to your children as well, if they feel it’s appropriate, and also if your children and both of you agree to this.
We have agreed things through mediation – what next?
You will get a ‘memorandum of understanding’ from your mediator. This document sets out what you’ve agreed. Both of you will get a copy.
It is a good idea, if you have made an agreement about property or money, to go to a solicitor with your memorandum of understanding for it to be turned into what is known as a ‘consent order’. It is not essential to do this, but we usually recommend it. The effect of turning your agreement into a consent order means that if your ex-partner does not stick to the agreement they made with you, you can ask the court to enforce it.
Once you have started the process to divorce, or end your civil partnership, you are able to make an application for a consent order. It must be approved in court by a judge. The court charges £50 for this. Your solicitor will also charge their fees. However, if you qualify for legal aid, this can pay your solicitor’s costs. You might also qualify for a court fee exemption if you are on a low income.
We did not reach agreement through mediation. What can we do now?
If mediation breaks down without agreement, you need to get legal advice from a solicitor. They will advise you what your best course of action is next.
You can find family solicitors near to you here.
If your disagreement is about arrangements for your child(ren), your solicitor is likely to suggest that you carry on attempts to agree between yourselves. This is because courts are normally very reluctant to decide who children live with or spend time with when the parents should be able to sort it out themselves. The courts work on a ‘no order principle’, which means a court order must be the very last resort.
You could try and agree a parenting plan with your ex-partner. This is a record in writing – or online – of how your ex-partner and you intend to look after your child(ren). The CAFCASS (Children and Family Court Advisory and Support Service) website has more information on making a parenting plan.
If the issue you cannot agree on is about money/property, when mediation does not work, a solicitor will more than likely recommend you to go to court to sort things out.
Are there any alternatives?
There are two alternatives if mediation does not work and you’d rather avoid going to court:
- ‘collaborative law’ session – this is a meeting with both you and your ex-partner together in a room with each of your solicitors
- family arbitration – arbitrators are similar to a judge. They will look at the matters that you and your former partner still disagree on and come to their own decision about what would be a fair outcome.
Although each of these options will probably end up being expensive, they are often still cheaper than fighting it out in court. However, you should always get a solicitor’s advice before trying either.
How does a collaborative law session work?
Your ex-partner and you will each appoint your own solicitor. You have to use one who has had specialist training in collaborative law. All four of you will be together in the room and you will work together to attempt to reach an agreement.
You will each have to pay your own solicitors’ fees, and this can be expensive. The total cost you will have to pay will depend on the time it takes for your ex-partner and you to come to an agreement.
You will each be required to sign a contract before you start the collaborative law sessions. This contract confirms that you will genuinely try and reach agreement. If your collaborative law session is not successful, you will have to go to court and sort out your issues this way. But you will have to use a different solicitor – you are not allowed to use the same one you used for your collaborative law session. This will increase your costs, because your new solicitor will have to spend time getting to know your case.
If you are able to come to an agreement through your collaborative law session, your solicitors will usually draft what is known as a ‘consent order’. This makes the agreement you have reached about your finances legally binding.
If for whatever reason you are not ready yet to apply for your divorce or to end your civil partnership, your arrangements can instead be recorded as a ‘separation agreement’.
Although a separation agreement is not legally binding, it can normally be used in court if:
- it has been properly drafted, by a solicitor for example
- the financial situations of both your ex-partner and you have not changed since the agreement was made.
Visit the Resolution website to find a specialist collaborative lawyer .
How much will my solicitor’s costs be?
Solicitors’ costs soon mount up and can be very expensive.
Solicitors often offer the initial meeting either for free or at a fixed cost. You should make sure you use this time wisely and find out all the information you can. You will probably not get any detailed advice, but the solicitor should give you an idea of the complexity of your case and approximately how much you need to budget for it to cost.
Ask your solicitor for a written estimate detailing how much your costs will be. If you do end up using a solicitor, prepare what you need to talk about before your meetings and keep each session as short as you can.
How does family arbitration work?
The other option to avoid having to go to court is family arbitration.
It is similar in some ways to going to court. The difference is that in family arbitration the decision is made, based on your particular circumstances, by an arbitrator, not a judge. You agree jointly with your ex-partner the arbitrator you will use. You also have the choice about where the hearing will take place and the issues you need to focus on.
The arbitrator’s decision will be legally binding on both of you. You most both stick to the arbitrator’s decision by law.
Arbitration is often cheaper than going through the courts. You cannot get legal aid so you will have to pay for the costs of arbitration yourselves. You can expect to have to pay at least £1,000 for a straightforward arbitration case, although if it is a more complicated case and takes a long time to sort out, it could end up being quite a lot higher.
Family arbitration can be a suitable option if both of you:
- want a decision to be made quickly – it can take over a year before you get a court date. On the other hand, an arbitrator can often start with your case much sooner
- want to avoid a court case even though mediation hasn’t worked for you, or you can’t reach agreement through solicitors or other means
- prefer it if someone else makes the decision for you instead of you having to negotiate it yourselves
You should always get legal advice from a solicitor before you decide on arbitration. A solicitor will be able to tell you if this method is suitable for your situation, and is likely to know of a good family arbitrator in your area.
You can also go online to look for a family arbitrator on the Institute of Family Law Arbitrators website.
Want to known more about family mediation?
You can contact Direct Mediation Services on 0330 043 6799, via email info@directmediationservices.co.uk or by our contact form.
