To Mediate or not to Mediate, that is the question?

07 May

COVID 19 has forced us to change the way we live and work, whether we like it or not. It has forced us all to think differently about how we use technology and how we work. It has made us think in a different way. Is it time to embrace change and to consider a different way to resolve your disputes?


As an experienced family mediator and barrister, I am always struck by some people’s reluctance to consider non court dispute resolution options and in particular mediation, often stating a preference to go to court. People feel, if they go to court, that they are guaranteed to get the result they want or achieve a more favourable outcome. But is this right? Are you guaranteed the result you want if you go to court? My 30 years plus experience tells me that court proceedings are fraught with risks.


Mediation is a resource, a tool for you, that can help you resolve issues that you do not have control over. If you have children, you need to have a civil relationship with the other parent for the benefit of your children. Even if there are no children, you will want to preserve your assets for the future in a cost effective way. Court proceedings and especially a contested hearing tend to make a bad situation worse. Negotiating with your ex partner, is a delicate balancing act to get it “right”


When it works, mediation is fantastic, the parties reach a solution with professional support. It allows you to apply a different approach; where you and your ex partner are the decision makers, not a judge, where you are in control not the court and you have time to reflect, what is best for you. It is more thoughtful and more conducive to building bridges than going to court.

Importantly your are in control of the costs. Even if there is one sticking point, there is no reason why that one point could not be dealt with by the court, at least you have narrowed the issues, saving you time and money.


Due to the benefits of mediation the rules changed so that in family cases, that includes both matters relating to children and matrimonial assets, the parties have to find out about mediation before they issue proceedings. This is achieved by attending a Mediation Information and Assessment Meeting. [MIAM]


Subject to some exemptions,1 the general rule is that if a party wishes to issue an application to the court for matters concerning children or matrimonial assets, they must attend a Mediation Information and Assessment Meeting. [MIAM] The court is under a duty to consider at every stage in proceedings, where non – court dispute resolution is appropriate 2 and if the court considers that non – court dispute resolution is appropriate, it may direct that the proceedings, be adjourned for such a period it considers appropriate. The court can do this of its own initiative.3 It has been my experience that Judge’s have paused proceedings for parties to attend mediation. It well be, as a result of the delays caused to hearings by Covid 19, that there could be a greater emphasis by the courts for parties to use mediation.


MUCH ADO ABOUT NOTHING

What is it that is holding you back from using mediation?

1. Is it the fear of the unknown?

2. Is it the fear that you will be pressurised into an agreement?

3. Is it the fear it will be a waste of money?

4. Is it the fear that the agreement is not binding. [In family mediation only]


Fear of the Unknown
1 FPR 2010 3.8.

2 FPR 2010 3.3.(1)

3 FPR 2010 3.4 (1) and (2)


Most people have never been involved in mediation and do not known what mediation is. This is why initially people are invited to an individual session. Mediation is not counselling nor is it therapy, the focus is resolving problems and to conserve assets for the benefit of you and your family.


Before you attend mediation you will be offered an individual session Mediation Information and Assessment Meeting. [M.I.A.M] One of the purposes of the M.I.A.M is to give you information about how the mediation will work and how it may help you resolve your issues and the cost implications. I also use it as an opportunity to support you to use mediation effectively and to discuss how your ex partner is to be invited to mediation. For some people the individual session is a reassuring step to familiarise themselves with the process and what is expected of them. By attending a M.I.A.M the unknown process will be known and any questions you have will be answered.


Due to Covid 19 all M.I.A.Ms I hold are currently being held remotely. I use either Zoom or face time.


Being Pressurised Into An Agreement.

People often tell me that is that the other party only wants mediation because of some tactical reason; delay, to pull a fast one, to put pressure on to accept their offer, or simply to waste “my” money.


It is the mediator who has control over the process and if I suspected that anyone is not being genuine, the mediation will be stopped. Likewise, if I as the mediator form the opinion that the mediation is not productive, I will stop the mediation. My role as a mediator is to help you and the other party to focus on the issues and to help you find a way forward. There is a natural pressure/ tension which must not be confused with overt pressure to agree. As a family mediated agreement is not binding this should mean that there is no pressure to agree, you will always have the opportunity to think about your options, to reflect and speak to your solicitor. You can always seek legal advice during the mediation process.


Many people do not appreciate until they are at court, in the court building, that there are pressures in court proceedings to come to an agreement. If you do not come to an agreement, the Judge can impose an order upon you which for you maybe the worst case scenario. Will the fear of an imposed order, put you under pressure at court to come to an agreement? A mediated agreement is an agreement that you have agreed to and it has not been imposed on you. It is a decision that have made with a clear head and professional support.


Waste of Money?

Whether or not mediation is a waste of money that is for you to decide. It is accepted that mediation is not for everyone and will not necessarily be 100% successful for everyone. However, going to court does not guarantee that you will get what you want either after much delay stress and a great deal of expense.


A common reaction to mediation is that it will not work as the parties’ positions are entrenched, or one party believes that they have a solid winning case. It is a known phenomenon that cases settle on the door of court. Why is this? Why could people not settle earlier? Logic dictates, that the respective parties’ positions were just as entrenched or they believed in the strength of their case right up to they day they arrived at the door of the court, so why settle now? Why did they not go into court and fight? Mediation offers the opportunity to settle before getting to the “door of the court”. Importantly it is a negotiated agreement that you have formulated that works for you, not one imposed by a judge.


The Agreement is not binding.

It is correct that in family mediation the solution that the parties arrive at is not a binding agreement. Whether it is a money matter or a children matter, the solution that you have reached can be set out, so that you or your solicitor can apply to the court for a consent order. This will enable the agreement to be binding. This is a far quicker and cheaper route than going to court.


ALL’S WELL THAT ENDS WELL

It is never too late to consider mediation. When mediation works it can help to preserve important relationships and assets, reduce stress and costs. It will bring matters to a swift

conclusion that will allow you both to get on with your lives. You can mediate before or during proceedings, mediation is available at any stage, even during a part heard hearing!


If you have decided that you want to do things differently, you want to have greater control and want to know more about the benefits of mediation, please contact me via the clerks to book a M.I.A.M. and we will get the process started for you.


Sita Cox Barrister and Accredited Family Mediator. 01227 764899 clerks@stourchambers.co.uk

This set comes recommended for its members' expertise in children and matrimonial finance matters. The children cases range across both public and private law work, and include those concerning non-accidental injury, sexual abuse and fabricated illness. On the financial side, the set's barristers demonstrate the ability to act in substantial financial remedies cases as well as Schedule 1 and TOLATA matters.

~ Chambers UK Bar Guide 2020

Specialising in matrimonial finance and children matters. Members appear in the regional courts as well as the High Court and the Court of Appeal. They often act in financial remedy proceedings relating to farms, companies, properties and other assets. In addition they are adept at dealing with serious child care allegations including physical abuse and death.

~ Chambers UK Bar Guide 2019

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