People often imagine mediation to be the softer option for resolving family disputes, suitable only for "straightforward" (measured against an invisible benchmark) matters where the people involved get on well or cannot afford to draw on the guidance of the court or other experts.
How wrong that is….
Mediation is appropriate for high value and complex cases
With the right preparation and an experienced mediator, mediation can help parties to navigate complex financial landscapes, and to tackle multi-faceted disputes. The parties will prepare financial disclosure which can meet the rigours of the court process in many ways, including expert valuations (of business, property or other assets), bank statements, income budgets etc. Where appropriate, and with the consent of both parties, professionals such as solicitors and accountants can take part in the mediation sessions. This may assist the parties in rigorous discussions, stress testing options with an understanding of what the law is on a given issue but importantly, what their personal objectives are. The process remains entirely voluntary, leaving the parties free to be creative and explorative in their discussion, retaining control of the ultimate decision and progressing far more quickly than court proceedings tend to.
Mediators can bring together polarised people and even work with "narcissists"
Trained mediators are adept at tuning into the parties' characters, enabling the mediator to set clear boundaries which allow both parties to be properly heard and ensure they move forward in a safe environment with a focus on achieving their shared objectives. With the parties setting the agenda for discussions, time can be dedicated to all aspects of their relationship, focusing on improving their core communication before progressing to topics such as co-parenting and the division of assets. With such a breadth of experience in the Non-Court Dispute Resolution (NCDR) space, including mediators from a therapeutic background, those specialising in certain aspects such as addiction, mental health issues, and co-mediators, parties will be able to find someone with the skills needed for them.
Mediators will challenge the parties
While mediators cannot impose a decision on the parties, that does not mean the process is a "tick box" or a situation where one party will be able to push through an outcome. Far from it. Mediators have a duty to challenge the parties, to model their ideas, stress test whether it meets their needs and objectives, and ensure that both parties’ views are heard. Practitioner mediators who have litigation experience (be that as a solicitor or barrister), tend to be particularly rigorous in ensuring the parties have considered all the issues to be addressed and that their agreement will meet the standard of the court.
Domestic abuse is not a block to mediation
Shuttle mediation, hybrid mediation and solicitor-supported mediation can be effective in ensuring a safe environment for discussions, with a continued focus on ensuring that neither party feels intimidated. The survivor of domestic violence has the comfort of working with the same mediator throughout (whereas the court process could see a different judge at each hearing), knowing that they have had the opportunity to share their experience and their concerns prior to the process beginning. And the mediator will have an eye to safeguarding throughout and will adapt the approach to any issues and/or concerns that arise in the process. This well managed, trauma-aware, bespoke approach can be a less overwhelming option than protracted court proceedings which can, in themselves, on occasion be used to perpetuate abuse.
Mediation is of course not suitable in every case. However, often the concerns stem from people not having a full understanding of the process, looking at how it could be made right for them, and how it could be central to a resolution that is empowering for the parties, setting them in good stead for their next chapter in life.