Mediation is a process by which a neutral third party (a mediator) helps people in dispute to negotiate a mutually acceptable agreement. The parties to the mediation control the outcome.
A mediator facilitates communication, promotes understanding, assists the parties to identify their needs and interests, and uses creative problem solving techniques to enable the parties to reach their own agreement.
Unlike the court process, no one imposes a solution on either party. If all of the parties do not agree to the result, the dispute remains unresolved.
Mediation gives parties much more control over the way their dispute or difference is dealt with and over the outcome. If negotiations have so far failed, mediation provides an alternative to pursuing litigation or other more formal processes. The scope for solutions is usually greater than those available in courts.
Mediation can be:
Is mediation the same as going to court?
No. Unlike the court process where the judge makes the decisions for you, the parties to a mediation are completely involved in, and ultimately responsible for, the decision making process. Proposals are arrived at by agreement and are not imposed.
Will the mediator make a ruling about what we must do?
No. The mediation process works on the basis that both parties freely enter into their own joint agreement. Whilst the therapeutic mediation process will offer you information to help you reach an agreement that is child focussed, it is you, as parents, who will have complete ownership of your agreement and your mediator will never impose a solution.
Will I be forced to agree to something I'm not happy with?
Absolutely not. Any agreements that you enter into will only work if both parties feel that they are equitable, realistic and achievable. We work hard to support you to find solutions that you both feel happy with, but this is not always possible and there is no requirement to make an agreement if one is not possible.
Is mediation a substitute for legal advice?
No. Whilst many parents use mediation as an alternative to the court process, we always advise that, where appropriate, you seek independent legal advice so that you have all the information you may need. Your mediator will not offer legal advice.
Will our agreement be legally binding?
No. Your mediated agreement will not be legally binding. However, you may both choose to enter into a legally binding agreement based upon the proposals arrived at within the mediation process. This is normally done through solicitors.
Will the mediator try to stop us separating?
The primary purpose of the mediation process is to help you deal with your divorce or separation in a way that is, wherever possible, collaborative and focusses on your children's experiences. It is not designed to prevent the separation. If, during the mediation process, however, you both decide that a reconciliation may be possible, we can work with you to explore that possibility and provide suitable support and information.
Is mediation similar to counselling?
No. Mediation offers you a structured environment in which the mediator assists you both to work towards building sustainable agreements that can change over time to meet your children's changing needs. If you feel that you would benefit from counselling, we can put you in touch with someone who offers that support.
What does 'without prejudice' mean?
Practical Law defines 'without prejudice' in the following terms: "the without prejudice (WP) rule will generally prevent statements made in a genuine attempt to settle an existing dispute, whether made in writing or orally, from being put before the court as evidence of admissions against the interest of the party which made them."