21 January, 2020
When considering whether to enter into Family Mediation, you may find it helpful to know about the principles of the mediation process.
Once you and your former partner enter into the mediation process, the Mediator will assist you both in considering ways in which to resolve issues you may have in making future arrangements for yourselves and for any children.
Family Mediation can address a range of issues, some of which can be emotional for clients and so, whilst it takes effort on both client’s parts, if successful, it is certainly the most efficient and cost-effective method of resolving issues following a family breakdown.
The Family Mediation Council (FMC) has recently published the results of their survey undertaken by accredited Mediators in 2019, which found that 75% of mediation cases will reach a successful outcome.
If you have reached decisions during mediation, it is likely that you would seek to have these in writing and for both of you to be bound by them. However, clients should be reminded that one of the principles of mediation is that proposals and discussions are confidential to the mediation process.
It follows therefore that historically; Mediators could only put draft decisions in writing within a document entitled “Memorandum of Understanding” (MOU). This would result in some viewing mediation as not meeting their need which is to establish a binding outcome. We are seeing an increasing level of self-representation both in children matters and financial cases. It is often the case therefore that clients will attend mediation looking to the Mediator to assist them with an outcome summary that could be used toward a binding outcome.
As a result, Mediators and the FMC have been considering for some time whether Mediators could go further than simply drafting decisions following a successful mediation and perhaps include greater detail to the Summary of Proposals, which might provide the clients with the draft for an Order they may seek.
In July 2018, the FMC approved guidance, jointly drafted by Resolution and the Law Society, which relates to Mediators preparing draft detailed decisions and terms. This can be in respect of financial matters, marital agreements such as separation agreements for cohabiting couples and parenting plans. The Family Mediation Code of Practice makes clear, however, that mediation is conducted as an independent professional activity and that the principles of mediation must continue.
As Mediators, we already draft decisions within a Memorandum of Understanding (MOU) and incorporate financial disclosure within an Open Financial Summary (OFS). This then assists the clients’ Lawyers when preparing any Consent Order. However, Mediators can now take a professional view as to whether or not they would wish to assist the clients further in providing more detailed terms to be included within a draft Order. This would then be forwarded to Lawyers for clients to take legal advice or alternatively the clients could approach the court themselves to seek an Order in the terms drafted.
Mediators can be Lawyers too and it is important that the two roles are distinguished from the other.
Lawyers give legal advice and guidance to one client. Mediators cannot give legal advice to either of the clients but rather provide relevant, realistic and affordable options alongside legal information where necessary. If the Mediator does choose therefore to assist the clients with a draft of an Order, the following must be remembered:
On occasion, clients may reach decisions that fall outside of what a court would normally order or approve, given the circumstances of the case. As Mediators, we can give legal information and explain the factors relevant to the court and the orders that can be made under legislation.
However, clients must be aware that if they seek a binding order, then decisions must be within the realm of what the court would approve and order, which the Mediator can identify. It is also imperative that both clients fulfill the duty of providing the other with full and frank disclosure of their financial circumstances so that each can make an informed decision. This will also help the Mediator to suggest realistic and relevant options.
The Mediator can assist the clients by setting out the disclosure to be provided by them, but it is not the role of the Mediator to verify the disclosure provided. It may be, therefore, that the Mediator will suggest to the clients that independent legal advice should be sought.
By way of summary, the role of the Mediator and the principles of mediation remain in place in the event that clients wish the Mediator to draft an Order. The decision, however, at the conclusion of your mediation as to what documentation should be prepared by your Mediator is a decision to make with your Mediator and ultimately it is the Mediator’s decision.
Every case is different; some clients may have legal representation, some may not. In every case, however, any Summary of Proposals that is incorporated with a MOU, no matter how detailed, will remain privileged and confidential and will not therefore be legally binding until the court approves it and incorporates the terms into an Order.
It is good practice for Lawyers to draft any Order having given legal advice to clients and your Mediator will encourage this. However, should you choose not to instruct a Lawyer and mediation concludes with you having reached decisions together, it is possible for your Mediator to assist further giving information as to how to achieve an Order yourselves.