How does Mediation work for families in conflict?
It’s no secret that children can become embroiled in inter-parental disputes. Family conflict is turbulent and emotionally taxing and while parents may be focused on their own separation, an unfortunate reality is that the real harm can come to children of the marriage.
This is particularly true if sustained court proceedings are involved – a situation that can have a negative impact on a child, whose life may change significantly following the divorce of their parents.
The volume of family court proceedings involving children continues to rise. Between 2015 and 2021, there was a 26% increase in private family law children cases. This, coupled with a 25% rise in the number of public law child protection applications, has unsurprisingly put pressure on the court system – which is already feeling the effects of a Covid-related hangover.
According to data from HM Courts & Tribunals Service (HMCTS), as of September 2022, the family court backlog is sitting at 110,425 cases – a 2% month-on-month increase and a striking year-on-year increase of 6.4% from the figure of 103,790. As a result, families are waiting up to two years for an outcome to be reached.
In a speech made by Sir Andrew McFarlane, President of the Family Division, in September, it was suggested that “the overall approach that is needed is to provide information and support for parents so that they may move away from a ‘justice’ based response to parental fallout towards cooperative separated parenting, where child welfare (rather than playing out parental conflict) is the central and overriding factor.”
Is mediation the answer?
Mediation empowers parties to take more control of their circumstances, make collaborative decisions and lay the foundations for a more positive, amicable future. There’s also the added bonus of avoiding the stress and expense of litigating within the UK family court.
Of course, it may not be an appropriate course of action in every case, for example where one or both of the parties are vulnerable and particularly where there are allegations of violence, coercive control or any other circumstances making mediation inappropriate. Mediation is not legally binding and it is confidential. Therefore, any conversations had in sessions cannot be referenced in proceedings at a later stage without permission from both parties.
All of the above aside, there is a strong case for family mediation to be used more broadly – not only as a solution to resolve conflict but also help overcome the growing issue of court backlogs which cause unnecessary delay for matters that can and should be resolved amicably.
How does mediation work?
Family mediation is a process in which an independent, professionally trained mediator helps separating couples make strategic and day-to-day decisions relating to their divorce. It can also be used to agree financial matters – such as whether to sell the family home or homes, and how to share the proceeds fairly.
It can also be utilised in respect of other financial matters such as pensions, trusts, foreign properties and assets, stocks and shares, and any other particularly valuable assets such as art, jewellery or collectors’ items. Mediation can also deal with items to which one party may be particularly attached, such as family heirlooms or valued family pets.
Mediation may be particularly helpful when it comes to discussing arrangements relating to children – such as where they live and with whom, or how they split their time between the parties. For some families there may be an international lifestyle to consider, with costs of transport forming part of the conversation. Education, where this is paid for, including university or other further education, may be another discussion point. Lifestyle, including hobbies or interests which could include horse riding, skiing, or other pursuits also need to be funded; necessitating conversations and agreement about which party funds what. Agreements also need to be reached the type of lifestyle that is appropriate for the children of the marriage.
The mediator’s objective is to facilitate discussion between the former couple, resolve any issues and find a solution which works for all parties, as well as explaining how to make arrangements legally binding.
A key benefit is that many different routes can be explored and parents can discuss their children’s unique and individual needs. They can also consider options that a court wouldn’t necessarily impose but may still provide a great solution. This can be transformational in helping to promote a positive, healthy relationship between separated parents.
Separating individuals sometimes dismiss mediation as an option if their cases are more complex. However, as long as both parties wish to mediate, there is often a way to accommodate their wishes.
The vast majority of our matters at Ribet Myles LLP are complex, often including international lifestyles into which arrangements relating to children need to fit, private education and additional lifestyle requirements. On the financial side there are frequently assets held all over the world, complicated business and trust structures, family business matters to agree and, quite often, familial or inherited wealth to deal with. Regardless of these challenges, mediation remains a popular option for many of our clients.
What happens if mediation fails?
If a couple have made significant progress in mediation but can’t come to an overall agreement on a solution; there are further alternatives available. It is sometimes appropriate to appoint an arbitrator (with the consent of both parties) to decide on the final outstanding matters – without having to enter the court process.
As an alternative, if the outstanding issues relate purely to finances, we can arrange a Private Finance Dispute Resolution Hearing (Private FDR) in which an independent judge is appointed who decides on the most appropriate outcomes. This is a step undertaken anyway during litigated proceedings, but arranging it on a private basis enables the parties to avoid court delays. Further, they can select a venue that is appropriate for their needs and preferences.
If mediation or other forms of out-of-court settlement or negotiations fail, the court process does, of course, provide the ultimate fall-back position.
Should mediation be made compulsory?
In this speech, Sir Andrew McFarlane questioned “why the State makes litigation compulsory for separating couples when one partner turns to the courts, but there is no similar element of compulsion to attempt to achieve a mediated settlement?”
Whilst he certainly makes a valid point, there are challenges with regards to making mediation compulsory. Because it is currently a voluntary process, the parties necessarily come to it by choice. That they do so illustrates a certain degree of willingness to at least start a conversation (if necessary, indirectly). Family lawyers can support the use of mediation, by continuing to promote its use and highlighting the benefits of the approach.
This said, being forced to start a conversation can provide an opportunity for a belligerent former partner to come to the table without losing face or feeling that they have been ‘defeated’. Some parties do, sadly, come to divorce with a highly aggressive approach. If mediation can be used to take the ‘sting’ out of the process, then it is almost always worthwhile at least attempting.
McFarlane suggests that if separating couples were required to engage in a minimum of one mediation session, they’d be more likely to recognise the advantages and find a solution to arrangements for children without the stress, time and expense of court.
Mediation - how we can help
At Ribet Myles, we work with closely with divorced parents to ensure that any matters relating to children are handled smoothly and all parties – including little ones – feel as comfortable as possible.
We understand that separation is an incredibly hard time for families. All our team are members of Resolution, a community of family justice professionals who work with families and individuals to resolve issues in a constructive way.
You can get in touch with us and speak to a member of our team here. To find out more about us and the work that we do click here.