Mediation is where an independent third party helps parents come to a voluntary agreement about arrangements for their children and finances at separation and after.
From 6th April 2011 all potential applicants to court in relevant family proceedings will be expected to have attempted mediation before applying to court
You will be expected to attempt mediation unless:
1. The mediator is satisfied that mediation is not suitable because another party to the dispute is unwilling to attend a Mediation Information and Assessment Meeting and consider mediation.
2. The mediator determines that the case is not suitable for a Mediation Information and Assessment Meeting.
3. A mediator has made a determination within the previous four months that the case is not suitable for a Mediation Information and Assessment Meeting or for mediation.
4. Any party has, to the applicant´s knowledge, made an allegation of Domestic Violence against another party and this has resulted in a police investigation or the issuing of civil proceedings for the protection of any party within the last 12 months.
5. The dispute concerns financial issues AND the applicant or another party is bankrupt.
6. The parties are in agreement and there is no dispute to mediate.
7. The whereabouts of the other party are unknown to the applicant.
8. The prospective application is for an order in relevant family proceedings which are already in existence and are continuing.
9. The prospective application is to be made without notice to the other party.
10. The prospective application is urgent, meaning:
a) there is a risk to the life, liberty or physical safety of the applicant or his or her family or his or her home; or
b) any delay caused by attending a Mediation Information and Assessment Meeting would cause a risk of significant harm to a child, a significant risk of a miscarriage of justice, unreasonable hardship to the applicant or irretrievable problems in dealing with the dispute (such as an irretrievable loss of significant evidence).
11. There is current social services involvement as a result of child protection concerns in respect of any child who would be the subject of the prospective application.
12. A child would be a party to the prospective application by virtue of Rule 12.3(1) of the Family Procedure Rules 2010.
13. The applicant (or the applicant´s legal representative) contacts three mediators within 15 miles of the applicant´s home and none Is able to conduct a Mediation Information and Assessment Meeting within 15 working days of the date of contact.
14. You are applying for an enforcement order, or a financial compensation order.
15. There are emergency proceedings before the court (about the children) which are undecided.
There is no standard fee. Mediators are independent and will have their own charging structure. Shop around! The service may be free if you are on a low income. If you are using a solicitor, they should calculate whether you qualify for legal aid. A mediator can also help you find out if you are eligible to have legal aid cover this cost. You may also wish to visit the Community Legal Advice website or call 0845 345 4 345 to check whether you qualify for public funding.
Information on how to find a family mediator may be obtained from local family courts, from the Community Legal Advice Helpline - CLA Direct (0845 345 4345) or at www.direct.gov.uk.
You might also wish to use the National Family Mediation web site.
If successful, mediation will be cheaper than going to Court. Mediation stands the greatest chance of an agreement being reached where both parents are happy, and therefore causes less stress for all. In the future, it is likely that separating parents will need to attempt mediation prior to seeking the court´s assistance in resolving areas of disagreement. Where parents currently qualify for legal aid, the Legal Services Commission (which provides legal aid funding) requires parents to consider mediation.
Mediation requires both parents to be able and willing to reach compromise, although a trained and skilled mediator might be able to assist that process.
Unless you have good reason (e.g. those listed in the Must I attempt Mediation? section) we recommend you do attempt mediation. The court will take note of your refusal to do so and may direct both parties to attempt mediation before court proceedings continue. This may result in delay and cause the judge to think you are ´difficult´ if they do not accept your reasons for refusal.
Mediators can assist couples to communicate when they are separating and disagreeing about issues such as financial matters and where their children should live. Mediation can be carried out as an alternative to, or before, during or after court proceedings.
Family mediators can give general information about the law and the way the legal system works. They cannot provide advice about a person's legal rights or their best course of action, and can´t make decisions for you or give you legal advice.
Mediated agreements are not binding in themselves. You may decide to apply to the court following an agreement having been reached via mediation, and ask the judge to make an ´order by consent´, essentially rubber stamping what was agreed. Bear in mind though that the judge must also believe that the order is in the children's best interest.
When choosing a mediator, you may wish to ask the following questions at the first meeting or by telephone beforehand:
How much will mediation cost?
Do I qualify for legal aid? (If so, ask if the mediator does legal aid work... not all of them do)
How long do the sessions last?
Is there a waiting list?
Do I need to bring any information with me?