If you are separating, you may be told that mediation is the next step before going to court. For some families, it can be a constructive and cost-effective way to resolve arrangements for children or finances. For others, particularly where there are concerns about safety, disclosure or imbalance of power, it may not be the right forum. This article explains what mediation is, when it can help and when early legal advice may be needed before you agree to take part.

What is mediation?

Mediation is often misunderstood as a form of counselling or therapy, but this is not the case. Mediation within the context of separating couples is where couples are assisted by an appropriately qualified professional mediator to resolve disputes without the need for court proceedings. Mediators remain impartial, and their primary role is to help parties communicate and assist them in exploring options and reaching joint decisions.

Nobody can be forced to mediate. It is a voluntary process. However, in most cases, unless an exemption applies, the court will expect separating couples to have considered mediation and to have discussed the process with a mediator before issuing court proceedings.

Is mediation right for me?

There are many advantages to mediation. Primarily, effective mediation can assist couples in avoiding court proceedings by reaching decisions jointly with the assistance of the mediator. This can represent both financial savings and an emotional benefit in avoiding having to engage in the lengthy and sometimes difficult court process.

Mediation can therefore be very successful for many families, but it works best where both participants are willing to engage openly, listen to each other and consider compromise. For children matters, it can help parents agree practical parenting arrangements. For financial matters, it can help parties reach proposals that their solicitors can then convert into a binding court order.

However, mediation is not risk-free. If one person does not engage honestly or is not prepared to compromise, the process can quickly become ineffective. It is also important to remember that anything discussed or agreed in mediation is not binding unless and until it is recorded in a court order.

Mediation may also not be appropriate in some situations. For example, if one party is not being honest about their finances, court proceedings may be needed to obtain proper financial disclosure. Mediation may also be unsuitable where the dispute is genuinely binary, such as where one parent seeks to relocate internationally with the children, and there is no realistic middle ground for the parents to agree.

Perhaps the most important scenario where mediation would not be appropriate, however, is in cases where abuse has been present in a relationship. Although some protocols can be put in place by mediators, for example shuttle mediation where each party is in a separate room and the mediator ‘shuttles’ between them, where there is a history of abuse, this can affect the power dynamic between the parties to the point where it simply cannot be made safe for a victim of abuse to attempt negotiation with their former partner, even via a mediator.

If you are unsure whether mediation is the right route for you, it is sensible to take early specialist advice before committing to a process. A family lawyer can help you understand the options available, identify any risks with mediation and choose the route most likely to achieve the right outcome for you and your family.