Navigating a divorce or separation can be incredibly painful in and of itself, but when there are assets and children to consider on top, the whole process can start to feel completely overwhelming. If you and your ex-partner cannot seem to agree on the best course of action moving forward and feel like you’ve hit a dead end, it might be worth considering whether family mediation could be helpful in finding a solution.
In this ultimate guide, we'll walk you through the essential aspects of family mediation proceedings, shedding light on how this process works and why it might be the right choice for you and your family.
What is Family Mediation?
Whether or not you’ve heard of family mediation before, you might be concerned about how it can fit into your current situation - especially if communication has massively broken down. Fortunately, however, family mediation is an incredibly versatile form of dispute resolution that family law solicitors use to help people reach a voluntary agreement. It is not like marriage counselling, nor should you be using it to decide whether or not your relationship is salvageable; typically, by the time you enter family mediation, there is an understanding that relations have been put to rest, and all that’s left to do is to agree on the financial, parenting and property issues that crop up as a result of your separation. Ultimately, it’s a process designed to help you look forwards.
At its core, family mediation should aim to answer two key questions:
● How do we fund two households, when previously we only had to fund one?
● How do we work together to raise our children whilst living separately?
If you can answer both questions by the end of the family mediation process, you’ll know you’re setting yourself up for a more peaceful future.
What Family Mediation Can Help With
Parenting Issues:
● Child custody arrangements - when children will see each parent
● Logistics like school or relocation
● Family members wanting to see their child relatives
● Child maintenance costs and other ad-hoc payments
● Surname changes for children
● Arrangements for holidays, Christmas, birthdays and introduction to new partners
● Short-term parenting arrangements before you start living separately
● Child Inclusive Mediation - to hear the feelings of the children
Financial & Property Issues
● Financial disclosure
● Division of assets, such as the family home, pensions, investments or shared businesses
● Spousal maintenance
● Changes to maintenance agreements
● Short-term finances, such as how any upcoming bills will be paid
● Short-term financial arrangements before you finalise matters
● Who will move out of the family home and how this will happen
What It Can’t Help With
● Disputes involving family members who aren’t in a relationship (such as siblings or a parent and a child)
● Neighbourly or workplace disputes
● Deal with reasons surrounding why the relationship ended
● Act as a counselling or therapy session (though you can be referred to these services in mediation)
● Cases where police or child services are involved (unless with prior agreement)
● Cases where one party refuses to participate
● Instruct you on exactly what to do
Do I Have to Mediate?
While you are not obligated to mediate, you do need to show the court you’ve at least considered family mediation before you make an application on most financial and parenting matters. The court will want you to have tried to resolve matters amicably beforehand, and it can also be to your credit if you can demonstrate that you’ve acted reasonably and responsibly in attempting to do so. The unfortunate reality is that many cases heard at court could have, and perhaps even should have, been resolved outside of the courtroom. As such, it’s important to have at least looked into family mediation as an option.
The Family Mediation Process
1. Initial Consultation
Typically, the mediation process will begin with an initial appointment referred to as a Mediation Information Assessment Meeting (MIAM). The family mediator is obligated to provide you with certain information about the process (which qualifies the appointment as a MIAM for court purposes), and they’ll want to gain an overview of your situation, establish the issues, your goals and any concerns you have.
After this meeting, your mediator can write to the other party to invite them to mediation. It doesn’t matter which party is seen first, and all family mediations will be carried out by the same third party.
For mediation related to parenting issues, you can go straight into joint mediation sessions, However, for financial matters, you are first required to make a financial disclosure in order to proceed. The only exception to this rule is if the meeting is to discuss an urgent matter, such as an upcoming mortgage payment. Once financial disclosures have been made, joint mediation can begin.
2. Mediation Sessions
If both parties are willing to go ahead, an Agreed to Mediate form must be signed by the parties and the family mediator prior to mediation.
During your family mediation sessions, your mediator will assist you both in going through all of your concerns, weighing up your options and determining whether or not each outcome would realistically work. Due to the range of emotions both parties are likely to experience during these sessions, your mediator will ask you to agree to some terms that will make the process run more smoothly. These terms might look like:
● Make an effort to listen and avoid interruptions or talking over each other
● Ensure that both parties have an opportunity to say their piece
● Avoid blaming each other, and instead focus on addressing issues
● Stick to any interim agreement reached, so that progress can be made
● Concentrate on present and future needs, rather than looking backwards
● Prioritise any children you have in your discussions
● Try to keep discussions progressive
On average, two to three sessions are required for parents to agree on child-related concerns, whereas financial difficulties tend to take between four and five sessions to resolve. Naturally, these numbers can differ depending on the complexity of the issues and how far apart your views are. Sessions typically last 90 minutes, and in between sessions you might be asked to gather further information, such as the value of your assets, examples of suitable properties for relocation and your mortgage capacity.
3. Finalising the Terms of Your Agreement
If you’ve made it to this step - congratulations! You’ve successfully reached an agreement through family mediation. You now have several choices.
Firstly, you can simply put into place what you’ve agreed to do. This is common on more specific issues, like where your child will attend school or an agreed decrease in spousal support. Otherwise, your mediator will write down everything you’ve agreed upon in a memorandum of understanding for finances or a parenting plan. Please note that there is a separate cost for these documents, which is generally shared between both parties. For financial matters, an Open Financial Statement (OFS) will also be drafted, which can be shown in court.
There are also a couple of other legally binding documents you can obtain to further legitimise your agreement, including:
● A family law solicitor drafted Separation Agreement.
● A child arrangements order, wherein the court agrees that it is in the interest of your child(ren) to make your agreement legally binding.
● A financial consent order, wherein the court will make your financial agreement legally binding, and can include a clean break as well. This order can only be drafted for divorces.
Having your agreement made legally binding is a great way to alleviate any lingering concerns you may have about the other party not holding up their end of the bargain.
Compassionate & Experienced Family Law Solicitors in Aberdeen
Of course, family law mediation is just one of many ways that you can try and reach an agreement in the midst of a divorce or a separation, and you might even find yourself trying several of them before issues can be resolved. If you’re not sure which solution would be best for your specific circumstances, talk to the team at DJP Solicitors. Our experienced family law solicitors can talk through your options with you, advising you on the best course of action to yield a fair outcome for all parties involved.
Whether it’s a divorce settlement, child residence or financial disputes, we aim to help minimise the stress that goes hand in hand with the end of a marriage or significant relationship, making it as easy as possible to move onto the next day of your life. Based in Aberdeen, we also serve clients in Forfar, Montrose, Elgin and Peterhead. Please get in touch to find out more about how we can help.
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