Do I have to go to Family Mediation?

Family mediation is voluntary. No one can be forced to attend. However, there are implications if you choose not to try mediation or any other type of alternative dispute resolution and make a court application for a judge to resolve your family law dispute.

In this blog, our family law solicitors explain what mediation involves, the support your family lawyer can provide and outline your options.

Contact Evolve Family Law.

Finding out about family mediation

Your family law solicitor will provide you with information about all your alternative dispute resolution options to resolve disputed issues with your ex-spouse or partner. Alternative dispute resolution can help resolve disputes over money, maintenance, property, pensions, the family business or the living and contact arrangements for your children.

The alternative dispute resolution options include:

1. Family mediation.
2. Amicable Divorce – One Lawyer Divorce.
3. Solicitor negotiations.
4. Roundtable meetings.
5. Collaborative law.
6. Arbitration.

A family lawyer can explain the pros and cons of each option and outline why one may be more suitable than others.

Although you may not have a positive view about mediation because of previous experience or the tales of friends, a divorce solicitor can explain the different types of mediation process, such as lawyer-involved mediation, shuttle mediation or child-inclusive mediation, and can recommend a mediator to you.

One-to-one preliminary meeting with a family mediator

Many people are reluctant to try mediation because they think they will be rushed into a settlement they don’t want and that won’t work for them. However, mediation normally starts with a one-to-one preliminary meeting with a mediator. This is called an MIAM or Mediation Information and Assessment Meeting. A MIAM should be treated as a meet-and-greet and strategy meeting, so the mediator has sufficient information about you and your family to enable them to work out a mediation plan that reflects your priorities and those of your ex-partner.

The Mediation Information and Assessment Meeting

At the MIAM meeting, the mediator explains how mediation works, outlines the role of a family mediator, assesses whether mediation is a suitable option for you, and answers your questions.

It is best to outline your specific concerns about the mediation process in the MIAM so the mediator can discuss solutions. For example, the mediator may suggest shuttle mediation or recommend the instruction of experts during the mediation process if you do not think that you can come to a fair financial settlement without a formal valuation of the family business or without a report from a pension actuary.

If the mediator does not think that mediation is suitable for you and your former partner, they will sign a form saying so. Your divorce solicitor will advise on whether the mediator is likely to say whether you fall within one of the exemptions that make mediation unsuitable. Even if the mediator thinks that mediation is a suitable option to resolve the disputed family law issue, either you or your ex-partner can decide that you don’t want to mediate.

Role of family law solicitors in mediation

Some people are reluctant to go to mediation because they fear their ex will push them into an ‘agreement’ they don’t want and think they would be better protected by their divorce solicitor handling everything for them. Sometimes they are right, and mediation is not the right option. For example, if one spouse is abusive, financially manipulative or refuses to provide financial disclosure of their assets. In other situations, family mediation can be empowering, and you, the mediator, and the family lawyers can work out the extent of the family law solicitors’ role in the mediation process.

The role of family law solicitors in mediation can involve:

1. Lawyer-inclusive mediation.
2. Mediation support.
3. Legal implementation of the mediated agreement.

Lawyer-inclusive mediation

With a lawyer involved in mediation, both family lawyers attend the sessions and provide advice to their respective clients between sessions. This type of mediation is only feasible if both partners want the lawyers to be present during sessions and the mediator agrees.

Lawyer-inclusive mediation can be a good option when there are complex assets or issues, and the two lawyers can work in ways that support the mediation process, giving it the best chance of success.

Having family lawyers present at family mediation meetings increases costs, so it is best to explore alternatives, such as seeking legal advice between mediation sessions or suggesting shuttle mediation if you don’t want to be in the same room as your ex and the mediator.

Mediation support provided by a family solicitor 

A family lawyer can provide mediation support by:

1. Explaining the mediation process.
2. Advising on potential child arrangement order or financial court order outcomes if either you or your ex-partner start financial settlement or children law court proceedings.
3. Advising on the extent of financial disclosure required to reach a fair mediated financial settlement.
4. Explaining an ex-partner’s financial disclosure and recommending that additional questions be asked or that valuation reports be obtained.
5. Advising on tricky legal points that crop up in mediation, such as the relevance of a prenuptial agreement or a future inheritance or how the court will treat a family business if court proceedings are started.
6. Reality testing childcare or financial settlement options suggested in family mediation sessions.
7. Explaining your options if mediation breaks down.
8. Converting your mediated memorandum of understanding into a binding financial court order or child arrangement order.
9. Sorting out the associated legal paperwork involved with a separation, such as no-fault divorce proceedings, the sale or transfer of the family home, a new Will or Lasting Power of Attorney.

Legal implementation of the mediated agreement

Some family lawyers are only instructed after family mediation has taken place, and an agreement has been reached. The family law solicitor can:

1. Advise on the memorandum of understanding.
2. Convert the mediated agreement into a binding financial court order or child arrangement order.
3. Legally implement the order. For example, arrange for the pension administrator to implement a pension sharing order.

If you reach an agreement in mediation but you do not finalise the divorce proceedings or obtain a court order, your ex could try to renege on the agreement later. That’s why it is essential to get input from a family lawyer on the memorandum and what needs to be done to convert it into a court order.

Confidentiality and mediation

Sometimes people worry that if they say they are willing to give mediation a go and it fails, anything they said in mediation will be used against them in subsequent court proceedings for a financial settlement or child arrangement order.

Mediation rules prevent either you or your ex-partner from revealing in court proceedings what was said in mediation to try to reach a compromise.

Impact of not going to mediation

If you choose not to go to family mediation or try any other form of alternative dispute resolution, and you issue court proceedings, the rules state:

1. The judge can decide to adjourn the application for mediation if the judge thinks it should be attempted.
2. The judge can penalise someone who started court proceedings or who refused to try alternative dispute resolution by making a cost order in favour of the other person.

Legal advice during mediation

At Evolve Family Law, our family solicitors emphasise the benefits of reaching a financial settlement or agreeing parenting arrangements outside of court proceedings. Family mediation is one of several ways to achieve that.  Our lawyers can support you through the mediation process and, if it is successful, ensure that your mediated agreement is converted into a binding court order and implemented.

Contact Evolve Family Law.