Frequently asked Questions
Mediation or Alternative Dispute Resolution (ADR) is a creative way of resolving entrenched conflict without going to court. It is an informal, non-adversarial, without prejudice procedure.
Mediation offers many advantages over going to court and in some cases is a required path before litigation. Mediation has been shown to be effective in settling disputes in a speedy and confidential manner.
A dispute that might have stretched over months can be settled in a short timescale with the help of skilled mediation. Mediation helps people to rebuild their relationships or move on with their lives.
What follows are some of the prime benefits of going through mediation
1. Mediation is much less costly than going to court. Generally speaking mediators charge by the hour.
2. Family mediation concerning disputes over children or finances often takes place over several one or two-hour sessions, other branches of mediation can take one or two longer sessions. Some commercial mediation takes place over a whole day or several days.
3. Mediation is far quicker than going to court, if you’re self-employed your time away from work will be reduced saving you money. Court cases can take months to be listed for hearing and sometimes years to come to conclusion.
4. Mediation as a process is held in private whereas court proceedings can be the subject of media attention.
5. Mediation allows both parties to express their opinions themselves, rather than having to go through their lawyer. Both sides can ‘tell their story’. This leads to a sense of empowerment.
6. The mediator assists and encourages both parties to work together to agree an outcome they can both live with. This collaboration may provide benefits further down the line for both parties.
7. A mediator is usually selected by both parties, who can check the mediator’s background and experience. If you are going to court, you will have no choice as to the judge who will ultimately decide the outcome of litigation.
The mediator will open the mediation either by meeting the parties (and their legal representative, if they have one) in a joint (plenary) session or in private (caucus) sessions if tensions are running high.
The mediator will go through the agreement to mediate, explaining it to the parties before it is signed. Mediation then progresses as a round-table meeting or in private sessions. The mediator gives each party the opportunity to talk about their perspective on the dispute.
Any potential or perceived power imbalance or ‘inequality’ caused by only one party being represented, or by one party being more ‘powerful’, emotional or verbose than the other is addressed and managed in mediation.
As the mediation progresses the mediator may go on to hold a further series of confidential meetings with each side to see how the dispute can be moved on. Any progress and agreement that is reached can be set out in a mediation heads of agreement for the parties to sign or take advice upon before doing so. This document is then legally binding for both parties.
Mediation is an excellent form of dispute resolution and can be used in most conflict situations. If you want to maintain a relationship with the other person or if you feel your life would be so much better if the dispute were settled, or even if you feel confidentiality is important for you, then choosing mediation is the right option.
If you are trying to reach an agreement in a dispute where there are many issues and strong emotions, resolution can be difficult. A mediator can transform a dispute into a more manageable process in which issues can be discussed and resolved in a calm environment.
You may have a solicitor guiding you through your dispute, in which case they will discuss mediation with you and tell you when it is suitable to use a mediator. If you haven’t got a solicitor, then consider the following points to help you make the decision.
- When emotions between both parties are so intense that they are preventing a settlement outside of the mediation process.
- When many issues distract the decision making process and the order in which these issues should be tackled.
- When the quantity and/or quality of communication between both parties is so poor that it requires a safe pair of hands to handle negotiations in a skilled way.
- When mistrust between parties is hindering communication and resolution.
- When behaviour that is negative is putting up barriers to resolution.
- When arguments over information prevent data from being collected and evaluated.
- When lots of issues distract the decision making process and the order in which these issues should be tackled.
- When there is a perception that each parties’ interests are incompatible.
- When there is currently no process for negotiations and things have stalled
Mediation is used in the corporate world, in employment, financial and partner disputes, separation and divorce, children and/or money disputes, in workplace conflict and neighbourhood disputes, in education, health authorities, insurance institutions, local government, medical negligence and personal injury cases and very frequently in politics.
Mediation can work for you to help resolve a divorce or separation situation. There are many worries for separating couples from agreeing finances, property and arrangements for their children.
Alternative Dispute Resolution, abbreviated to ADR, is a collective term used for techniques that deal with disputes without going to court. Mediation is a process that falls into the category of ADR.
A method of settling disputes in which a neutral, specially trained (legal or non-legal) ‘mediator’ enables the parties to come to their own agreement, one which each considers acceptable. It is a ‘without prejudice’ meeting. Mediation can be ‘evaluative’ with the mediator giving assessment the legal strength of the case, or ‘facilitative’, where the mediator concentrates on assisting parties to define the issue from their own standpoint. When a mediation is successful and an agreement is reached, it is written down, signed by the parties and forms a legally binding contract, unless the parties state otherwise.
A procedure whereby both sides in a dispute agree to let a third party, ‘the arbitrator’, decide. The arbitrator may be a lawyer, or may be an expert in the field of the dispute. The arbitrator will make a decision according to the law. The decision is known as ‘the award’, is legally binding and can be enforced through the courts. Family solicitors and barristers may now train as family arbitrators.
Early Neutral Evaluation/ Early Judicial Evaluation
A process in which a neutral professional, commonly a lawyer/ judge, hears a summary of each party’s case and gives a non-binding assessment of the merits. This can then be used as a basis for settlement or for further negotiation.
A process where an independent third party who is an expert in the subject matter is appointed to decide the dispute. The decision is binding on both parties.
A procedure akin to mediation, but where the conciliator takes a more interventionist role in bringing the parties together-suggesting possible solutions. This process is gradually falling into disuse as mediation grows in popularity.
A combination of mediation and arbitration where the parties agree to mediate but if that fails to achieve a settlement the dispute is referred to arbitration. The same person may act as mediator and arbitrator.
This is a non-binding procedure used in cases involving complex technical issues. A neutral expert in the subject matter is appointed to investigate the facts of the dispute and make an evaluation on the merits of the case. This can form the basis of a settlement or a starting point for further negotiation.
Ombudsmen, (sometimes called ombuds) are independent office holders who investigate and rule on complaints from members of the public about maladministration in Government and in particular in services in both the public and private sectors. Some ombudsmen use mediation as part of the dispute resolution procedures. The powers of ombudsmen vary. Most ombudsmen are able to make recommendations, only a few can make decisions which are enforceable through the courts.
Watchdogs appointed to oversee the privatised utilities such as water and gas. They handle complaints from customers who are dissatisfied by the way a complaint has been dealt with by the supplier.
The object of the Mediation Information and Assessment Meeting (MIAM’s) is to help people become aware of mediation and how it could support them going through separation and divorce. Family mediation can help couples reach a resolution relating to children; such disputes are usually best resolved though discussion and agreement, where that can be managed safely and appropriately.
MIAM’s was introduced by the Ministry of Justice in April 2011 to help the public access information and advice about the advantages of mediation at an earlier stage of their dispute (pre-action). So those wishing to make an application to the court, whether publicly funded or otherwise, will now have to first consider, as appropriate, alternative means of resolving their disputes.
All potential applicants for a court order in relevant family proceedings will be expected, before making their application, to have followed the steps set out in the Protocol. This pre-action protocol requires potential applicants, except in certain specified circumstances, to consider with a mediator whether the dispute may be capable of being resolved through mediation.
The courts will expect all applicants to have complied with the Protocols before commencing proceedings and (except where exceptional circumstances apply) will expect any respondent to attend a Mediation Information and Assessment Meeting, if invited to do so.
If court proceedings are taken, the court will wish to know at the first hearing whether mediation has been considered by the parties. In considering the conduct of any relevant family proceedings, the court will take into account any failure to comply with the Protocol and may refer the parties to a meeting with a mediator before the proceedings continue further.
The mediator will agree the time and place with you and you can attend the meeting either together or separately. The meeting will take about one hour and you will have time to talk about your current situation.
Your MIAM’s provider will give you information about the benefits of mediation and tell you about some different ways of managing your separation/divorce process including using mediation to agree housing, financial and children matters and also inform you about the benefits of the Collaborative Divorce model.
The MIAM’s provider can complete the mediation section of a form for the court. This will state that you have attended the meeting and whether or not mediation is a possibility in your circumstances, now or at some future date.
Who is a MIAM’s provider?
People who carry out MIAM’s meetings are experienced family mediators or lawyers who have undertaken the specialist training to qualify to conduct Mediation Information and Assessment Meetings.
Mediators are highly trained and accredited in conflict resolution. They are excellent listeners and are non-judgmental. Their role is to help the parties come to their own solution; one that all the parties can live with.
Glossary of legal terms
Acknowledgement of service
When a respondent confirms that a divorce or dissolution petition has been received, he/she fills in, signs and sends back the acknowledgement of service to confirm in writing that the petition was received.
Adjourned sine die
When a court case has no date fixed for it to continue.
Postponing a court hearing.
To take another person’s child into your family and legally raise him or her as your own child.
An order giving parental responsibility for a child to adopters made on their application to the court. The order extinguishes the parental responsibility which any person had for the child immediately before the making of the order.
Sexual intercourse with an individual of the opposite sex other than your spouse.
A barrister or a solicitor representing a party in a hearing before a court.
This is a statement in writing and on oath sworn before a person who has authority to administer it.
An old term usually used in the context of financial proceedings and financial orders which can be made by the court. This is now known as ‘financial remedy proceedings’.
To end an invalid marriage.
See ‘pre-nuptial agreements’.
Asking a court to overturn a lower court’s decision. If the decision of a court is disputed, it may be possible to ask a higher court to consider the case again by lodging an appeal.
A member of the bar; the branch of a legal profession which has rights of audience before all courts. They are instructed by solicitors and are also known as counsel.
Even though an asset may be legally owned by one person, the beneficial owner may be somebody else. A common situation is in respect of a trust or settlement.
The offence committed by someone who is already married but still goes through a marriage ceremony with somebody else.
A document prepared by a solicitor which contains the instructions for a barrister to follow when acting for the solicitor’s client in court.
Case management conference
A hearing to consider the directions necessary to ensure a fair hearing takes place and to timetable proceedings to ensure that the final hearing takes place in good time.
A person under the age of 18.
The unauthorised removal of a child from the care of a person with whom he or she normally lives.
Child Support Agency
A government body responsible for supervising the assessment and payment of maintenance for children.
A judge who sits in the County Court and/or Crown Court.
Same sex couples may enter into a civil partnership which brings about the same rights and obligations as marriage. Civil partnerships are terminated in a similar process to divorce.
In financial remedy proceedings the court has a duty, when exercising its powers to make an order, to consider whether it would be appropriate to exercise those powers so that the financial obligations of each party towards the other will be terminated as soon as the court considers just and reasonable.
A couple living together as husband and wife or as a same sex couples.
Committal to prison
Sending a person to prison for breaching a court order.
A structured process in which parties to a dispute meet voluntarily with one or more impartial third party to help them explore the possibilities of reaching agreement without having the power to impose a settlement upon them, or the responsibility to advise any party individually.
A term used for an order setting out a formal agreement between the parties, whether this is within divorce proceedings or Children Act proceedings.
This term is used to refer to the amount of time a child spends with his/her parents or perhaps even grandparents – previously known as ‘access.’
Is a supervised venue that exists to support and promote contact between parents, grandparents, guardians and children that do not live together.
An order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order.
Within divorce proceedings the co-respondent is the person with whom the respondent has committed adultery. It is not necessary for a co-respondent to be named within the divorce proceedings based upon adultery.
A court dealing with civil matters which can hear family cases, usually by district judges and/or circuit judges.
The final order of the court within divorce proceedings which brings the marriage to an end.
A provisional order of the court which orders that a marriage should be dissolved and which is issued prior to decree absolute. The order indicates the court is satisfied that the grounds for divorce have been established. This is not a final certificate of divorce.
Similar to divorce for married couples, dissolution refers to the dissolution of a civil partnership. See dissolution of civil partnership for more information.
Dissolution of marriage.
The place where a person lives.
A person with a high level of knowledge or skill, a specialist usually instructed to give or prepare evidence to the court on matters within his/her expertise.
Family Proceedings Court
A magistrates’ court dealing with family cases.
The hearing at which the court will make the final determination in relation to any application before it.
Financial dispute resolution hearing
This is a hearing in financial remedy proceedings where the court assists the parties in discussion and negotiation in order to reach a settlement. The court is unable to force an agreement on the parties at this hearing.
First directions appointment
This is the first hearing in financial remedy proceedings. The purpose of this hearing is to define the issues, save costs, make directions in relation to the future conduct of the case and, where possible, reach a settlement.
Financial remedy proceedings
A general term used in the context of financial proceedings and financial orders which can be made by the court. This used to be known as ‘ancillary relief proceedings’.
An obligatory sworn financial statement filed in financial remedy proceedings intended to encapsulate everything that the court needs to know about the financial position and what orders the parties are seeking.
An order which prevents or sets aside the disposition or transfer of any property or assets.
A civil court consisting of three divisions;
Queen’s Bench – civil disputes for recovery of money, including breach of contract, personal injuries, libel/slander.
Family – concerning matrimonial matters and proceedings relating to children.
Chancery – property matters including fraud and bankruptcy.
Inherent jurisdiction of the High Court
The general jurisdiction of the High Court is, broadly speaking, unrestricted and unlimited in all matters of law, which means that the High Court can make almost any order except in so far as any power has been taken away in unequivocal terms by statute.
A term used for an order of the court preventing or requiring action. Applications for such orders are usually made in emergency situations and can be made in respect of property or to protect a person.
The court approving formal separation of parties to a marriage but not actually dissolving the marriage.
Lump sum order
In ancillary relief proceedings, an order that one party to the marriage pay the other party a fixed sum of money in either one payment or by instalments.
Money paid to support a spouse and/or children when a marriage or civil partnership has ended, otherwise known as ‘periodical payments’. Maintenance may be paid for a fixed period of time or indefinitely on what is known as a ‘joint lives basis.’ If spousal maintenance is paid on a joint-lives basis, it will automatically cease upon the re-marriage/civil partnership of the person receiving the maintenance or on the death of either party.
Maintenance pending suit/interim maintenance
A term used for financial provision whilst proceedings are ongoing and until such time as a final order is made.
The principal home in which parties to the marriage reside or resided.
Talking to two separate people or groups involved in a disagreement to try and help them to agree or find a solution to the problems.
Under Section 3 of the Children Act 1989 this is defined as all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his/her property. See parental responsibility for more information.
A sum of money paid regularly by the Government or a private company to a person who does not work anymore because they have reached retirement age or because they have become ill.
An order in divorce or nullity proceedings allowing the court to order the pension scheme of one party to divert a portion of the pension or lump sum to the other party.
Pension sharing order
An order in divorce or nullity proceedings allowing the court to provide that one party’s shareable rights under a pension scheme (which may include any pension, lump sum or gratuity, given on or in anticipation of retirement) be subject to a pension sharing for the benefit of the other party through specifying a percentage value to be transferred. This order splits the pension before retirement.
Periodical payments order
In financial remedy proceedings an order that either party to the marriage shall make to the other such periodical payments, for such term, as may be specified by the order.
A method of commencing proceedings whereby the order required is expressed as a prayer e.g. in the divorce petition a prayer that the marriage be dissolved.
Pre-civil partnership agreement
A legal agreement between two people who are about to become civil partners. The agreement sets out how the couple’s assets will be divided between them if their civil partnership later dissolves. See pre-civil partnership agreements for more information.
A legal agreement between two people who are about to get married. The agreement sets out how the couple’s assets will be divided between them if they later divorce. Also known as ante-nuptial agreement. See pre-nuptial agreements for more information.
Property adjustment order
In financial remedy proceedings, an order that a party of the marriage shall transfer or settle such property specified in the order to or for the benefit of the other party or child of the family.
Saleof property order
In financial remedy proceedings, where a court makes a secured periodical payments order, lump sum order or property adjustment order, it may make a further order for the sale of such property as may be specified in the order.
Section 8 order
An order under section 8 of the Children Act 1989, namely residence order, contact order, prohibited steps order or specific issue order. See arrangements for children for further information.
Secured periodical payments order
In financial remedy proceedings an order that either party to the marriage shall secure to the other to the satisfaction of the court, such periodical payments for such term as may be specified in the order.
Member of the legal profession mainly concerned with advising clients and preparing their cases and representing them in some courts. May also act as advocates before certain courts or tribunals.
A formal or binding promise to the court to do or not to do something.