“We’re getting divorced. Do we have to go through mediation?”

Mediation is a process that can enable couples to agree between themselves the terms on which they’ll move on from their relationship. 

An alternative to court, it involves an independent third party (the ‘mediator’) helping the parties communicate what they need and how they might divide assets, as well as making arrangements for their children. Mediation is often said to be a way of the parties retaining control, as opposed to handing that over to a judge. In some cases, it even helps people head into the future on better terms than might have been the case had they taken the court route.

However, mediation isn’t for everyone. It relies on the parties to want to engage with the process and to try to reach a resolution that works for both. Sadly, many relationships end on bad terms; communication is difficult, and hostility and resentment can get in the way of the type of cooperation that effective mediation requires. In the most serious cases, where domestic abuse is involved, court will always be the way to go.

It’s currently compulsory in most Family cases for parties to attend a Mediation Information and Assessment Meeting (MIAM) before embarking on court. At this meeting they learn about their options for resolving their issues. Some will choose mediation or another form of ADR; others will opt for court. However, earlier this year, the government announced plans to mandate mediation for separating families ‘in all suitable low-level family court cases excluding those which include allegations or a history of domestic violence’. The government says that, as well as helping protect children from the damaging impact of bitter courtroom battles, the move could help up to 19,000 separating families resolve their issues away from the courtroom and reduce backlogs and ease pressures on the family courts.

The proposal has been met with some reservation. Resolution, the community of family justice professionals, is one organisation to have expressed concern that families could be forced to take a route that may not be suitable for them. “It may leave them without a lasting solution and could mean they end up needing more help and taking up more court time further down the line,” said Resolution’s Chair.

For now, though, mediation remains optional. It’s not something parties can be made to take part in, nor can (or should) one party force the other into it. The best mediations happen when both people understand the purpose and willingly take steps to reach the best possible outcome for all involved. That, unfortunately, isn’t the reality for all families.

To find out more about mediation as a way of resolving your family issues, or for advice about separation, divorce or civil partnership dissolution, contact us on 01264 353411 or at family@bsandi.co.uk.