What is Family/Separating Couples Mediation?

Mediation is a confidential, voluntary, "without prejudice" process in which a neutral third party, the mediator, helps you to constructively discuss and negotiate all issues surrounding your divorce or separation. This includes decisions about your children, finances, property, division of other assets and any additional issues relevant to your separation agreement. When a case settles at mediation, the mediator will record the couple’s decisions in a written agreement (A Memorandum of Understanding). It is recommended that parties seek independent legal advice before signing this agreement. The Memorandum of Understanding itself is not legally binding, but is intended for your solicitor to use in preparing a legally binding agreement if you so wish.

Goals of Family/Separating Couples Mediation

• To prepare the parties to anticipate, work through, and resolve disagreements that might arise.
• To help the parties reach their own mutually acceptable agreement by fully exploring all choices.
• To reduce the polarization and entrenchment of views that can happen when couples leave their negotiations to take place at legal adviser level.
• To reduce anxiety and the negative effects of going to court.
• To avoid the need for a court-imposed decision.

Is Mediation Confidential?

Discussions are legally privileged which means that what you say during mediation cannot later be used in Court as evidence. But any financial facts provided by either of you to the mediation process may be used subsequently in court. If an agreement is not reached then the financial disclosures made by you during mediation can be used by a solicitor as a basis for further discussions. Your discussions in mediation are confidential unless you jointly agree that information should be disclosed, or unless the mediator is worried that someone will come to harm.

Role of the Mediator

The mediators job is to act as an impartial third party and manage the mediation process, helping you to exchange information, ideas and feelings constructively and ensuring that you make informed decisions. The mediator has no power to impose any settlement - responsibility for all decisions remains with yourselves since you know better than anyone else what is right for your family. The mediator will encourage you to seek professional legal and financial advice in order to inform your decision making. The mediator does not provide a counseling service.

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
• Identify the necessary information needed for the discussions.
• Talk about the choices open to you
• Negotiate with each other in order to reach decisions which are practicable and acceptable to you both.
• Discuss how you can consult your children appropriately about arrangements you decide to make.

How will money and property be tackled?

You will be asked to provide details of expected income and spending (as far as this can reasonably be predicted) and details of the value of your assets by:

• 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 in which either of you have an interest.
• Identifying loans and debts for which either of you are liable.

How will I know if my decisions are in my best legal interests?

A mediator does not give legal advice. The mediator is there to create a productive space where a couple can constructively negotiate their decisions for the future. However, the Mediator will encourage the parties to seek legal advice throughout the mediation process as appropriate, regarding:

• The making a Statutory Declaration as to Means; Legal rights; Divorce proceedings; Property ownership transfer, Will adjustments etc.
• Bringing the Memorandum of Understanding to the legal format of a Legal Separation Agreement; Ensuring that the agreement you reach meets legal requirements.

If the parties choose, then their legal advisers may also attend the mediation with them.

What happens if we can't agree on everything?

You may well have reached a certain level of agreement which can be written down and the areas still outstanding can be clarified. You can then instruct your solicitor to negotiate a final agreement on your behalf. Ultimately if you cannot agree, the Court may have to make the decisions for you.

What are the Advantages of Mediation?

• The couple has responsibility for negotiating their own agreement – they have complete control of the outcomes
• Parenting and financial issues are decided by the mutual agreement of both parties
• Reduces the stress and conflict for the parties
• Reduces the polarization and entrenchment of views that can happen when couples leave their negotiations to take place at legal adviser level
• Less divisive than court action
• Reduces the cost and delays involved in court proceedings
• Offers a confidential service
• Reduces the time investment by solicitors
• Parties are free to choose to withdraw from mediation at any time
• Parties do not jeopardize their other dispute resolution options
• Clients retain their legal advisors if the mediation process breaks down
• Decisions taken jointly by the couple have a better chance of being honoured
• Risks are low and the potential for a successful outcome is high