The journey of separation and divorce can be painful, confusing and frightening. Feelings of loss, anger, rejection and fear can be overwhelming for all involved.
Within this context the parties will need to take legal and practical steps that will have an impact long after the legal process has been completed and will ultimately lead to the realities of their ‘new normal’.
For couples who want to work together to shape this new normal, mediation can be a positive experience. In mediation a neutral third party supports both parties to work towards agreements that are acceptable to both of them.
Where children are involved, child-focussed mediation can give parents the opportunity to make agreements that are in the best interests of their children, agreeing the details of time with mum and time with dad and co-parenting arrangements.
Property and finance mediation gives a couple the opportunity to agree the separation of their assets and liabilities. Where a mediator is legally qualified it must be stressed that they do not act in the role of legal adviser to either or both parties. They take off their metaphorical legal hat and put on their metaphorical mediator’s hat to act as a neutral, third party facilitator of the mediation process, enabling both parties to reach their own agreed way forward. However, this does not mean that the parties should enter such mediation without independent legal advice. It is important that their solicitor gives them an understanding of the range of reasonable outcomes so that any agreements they make will be legally informed. They may also need to obtain financial and pension advice.
What happens in a mediation?
The mediator will initially meet each person individually to explain the process and to discuss, among other things, their priorities and needs for the future. At this appointment the mediator will screen for any issues that may have an impact on the mediation. Has there been any form of domestic abuse, including coercive control? Is it safe to bring them together, both physically and emotionally? How confident are they in discussing their financial options? Where it is safe to do so, the mediator will subsequently meet with the separating couple together for several joint sessions over a period of a few weeks.
The couple will disclose the required financial documents, agree values of all their assets and debts as well as incomes and the mediator will help them to formulate options and work towards an agreed outcome that meets the needs and priorities of both, including any children of the relationship. It must be stated that this is a process based on mutual trust. If one party doubts the other’s honesty in disclosing all their assets then mediation will not be suitable for them and they will need legal representation to compel disclosure.
Mediation is a voluntary process and, particularly with former couples, pressure should never be put on anyone to mediate either in child focussed mediation or property and finance mediation.
For those who do wish to enter mediation and for whom is safe to proceed, mediation can be a constructive way forward that can lead to positive outcomes for children and a redefined arrangement of assets that allows each party to move into the next stage of life on a mutually acceptable footing.
Rosalind Dunlop is accredited with the College of Mediators for Child Focussed and Property and Finance Mediation and is a trained member of the Elder Mediation International Network. She is a Board Member of the Law Society Mediation Service.