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Creating Paths to Family Justice. Putting research into practice
Mediating Safely
Recommendations following the Mapping Paths to Family Justice Project
The stories you are about to hear (voiced by actors, with names changed to protect identities) are from some of the individuals interviewed during the Mapping Paths Family Justice project.
Prof. Anne Barlow
University of Exeter
[Prof. Anne Barlow]
For couples who are separating, mediation is a voluntary process in which an independent, professionally trained family mediator helps you and your ex-partner to reach agreements about your child arrangements and finances. You control what is discussed and the decisions made. The mediator does not advise or direct you towards particular solutions, but helps you consider your options and how these would work practically for you, your ex, and any children; both now and for the future. The mediator will explain how to make agreements reached legally binding, if this is necessary. Mediation can be a less costly and less acrimonious way to reach agreements. However, mediation is only appropriate when it is safe to mediate. We hope that this short video will help you decide whether mediation is appropriate for you.
Eleanor
Issues: Child arrangements
Resolved by: Mediation
[Eleanor]
Me and my ex-partner, Sam, separated when our child was one. Our counselor referred us to mediation and we had separate assessment meetings. The mediator told me that they weren’t there to give their opinion, just to facilitate the discussion in a reasonable way. For us mediation worked really well because if either one of us started getting argumentative or too aggressive, the mediator was really good at calming it down and moving the conversation on. Mediation was brilliant. It was really positive. Because when I tried to discuss it with Sam, it always ended up in an argument and really aggressive. I felt quite vulnerable having discussions with him alone. Mediation was brilliant because I just felt completely safe.
Wendy
Issues: Child arrangements
Resolved by: Direct negotiations following meeting with mediator
[Wendy]
My ex-partner Simeon was emotionally abusive. I don’t think that anybody properly understands emotional abuse until they’ve been through it, because it’s not like being hit where there’s something very tangible. It’s extremely subtle and damaging, but I decided to try mediation. And actually the mediator did understand, and he was very good. He said, ‘you don’t have to be in the same room. You don’t have to see each other.’ All of the issues that were a problem to me, he was saying, ‘I can manage that for you if that’s what you want to do.’ I felt, going into the meeting, there was no way I was going to mediation, but when I came out, I’d been convinced to try.
Prof. Anne Barlow
University of Exeter
[Prof. Anne Barlow]
I’m Professor Anne Barlow from the University of Exeter Law School. I led the mapping project, looking at whether certain parties or cases were better suited to certain out of court dispute resolution processes, including mediation. When relationships break down, couples often find it difficult to agree arrangements for their finances and for their children. Feelings of hurt, anger, bitterness, or sadness, are usual when couples separate. Our research shows that mediation works best when both parties have a good understanding of what issues they will need to decide. And of how mediation works, so that they feel practically prepared for the process. Your mediator will help you with this. Mediation is also best attempted once parties are emotionally ready to mediate. You may find it helpful to watch this short video to assess whether you are emotionally and practically ready to mediate.
Want to know more information about emotional and practical readiness for mediation?
We recommend you also watch our related video on this topic Considering Mediation?
[Prof. Anne Barlow]
Mediation is not appropriate if there has been violence, threats, or controlling or coercive behavior leaving one party feeling unable to express themselves freely in mediation, or to put their proposals forward without feeling fearful or intimidated.
Ernest
Issues: Child arrangements
Resolved by: Mediation
[Ernest]
My ex-partner suffered terribly from postnatal depression. She was violent towards me.
[Prof. Anne Barlow]
Anyone can be a victim of domestic abuse. In 2017, official statistics showed that 7.5% of women and 4.3% of men aged 16 to 59 had experienced domestic abuse in the previous 12 months. If you are a victim of abuse, or at risk, there is support available from a number of support agencies. You do not have to live in fear.
In the following sections you will find out more about whether mediation might be for you; and if not, the support available to you.
Are you exempt from a Mediation Information and Assessment meeting (MIAM)?
[Prof. Anne Barlow]
Mediation itself is voluntary. But before applying to court about children or finances, the person applying must attend a ‘Mediation Information and Assessment Meeting’, known as a MIAM. This initial meeting is also sometimes referred to as an ‘Information and Assessment Meeting’, or simply, ‘The Assessment Meeting’. This is a confidential meeting to assess whether mediation is appropriate for you, where you meet individually with the mediator to find out about mediation.
Here you explore with a mediator the options resolving matters without going to court, including mediation, unless court proceedings are needed. The court also expects your ex-partner to attend the MIAM. Legal aid is available to cover the cost of attending the MIAM and the mediation itself, if you are financially eligible. If one person is financially eligible for legal aid, the other person’s MIAM and the first session of mediation are also free even if the second person does not qualify for legal aid. You may be exempt from MIAM attendance if you are at risk of physical, emotional, or financial abuse or control, evidenced by police involvement, injunction proceedings, or written confirmation of risk from certain health professionals or support services. If you are financially eligible and exempt from attending a MIAM then you will be entitled to the legal aid to bring court proceedings to apply for a protective injunction, or to sort out financial matters or child arrangements. Although if you recover money or property within the proceedings you may have to pay your legal costs back. The Law Society provides details of lawyers who undertake legally aided family cases in your area. Resolution, the organization of family lawyers committed to a non-confrontational approach, lists specialist lawyers accredited in domestic abuse. Some lawyers offer initial free advice. We also list details of domestic abuse support services at the end of this video.
MIAM
[Prof. Anne Barlow]
If you are not exempt from MIAM attendance, then at the Assessment and Information Meeting, the mediator speaks to each party individually to hear their concerns and to assess whether mediation is safe and appropriate. If the mediator feels that you won’t be able to express yourself freely due to fear or intimidation, they will recommend that mediation does not take place and refer you to legal advice and appropriate support. Alternatively, if there are some concerns, but it is felt mediation will be safe, the mediator will explain available safety measures like staggered arrival and departure times and separate waiting areas. They may suggest having two mediators present, or that you and your ex are in separate rooms with the mediator relaying each party’s proposals, in a process known as ‘shuttle mediation’, to help you to get over a difficult period in the mediation.
Brenda
Issues: Finances
Resolved by: Mediation
[Brenda]
The conflict between my ex, Matt, and I was quite high. So the mediator always suggested that I left five minutes before Matt. The mediator said at the very beginning that there were some things that she would never tolerate during mediation, including any kind of aggressive behavior. So it was very clear from the start that this wouldn’t be accepted. Mediation does get the job done quickly. It really did empower me.
[Prof. Anne Barlow]
If you choose mediation, it proceeds at your pace. At the MIAM, you may wish to agree a signal with mediator to pause the mediation session at any time. The mediator sees you individually briefly before each session to ensure that mediation continues to be suitable. Next, we meet another of the interviewees from the mapping project, Kim.
Kim
Issues: Children retained after contact
Resolved by: Mediation
[Kim]
When my ex, Alistair, suggested mediation I was really resistant initially because I knew he was really stuck on: ‘I want them these times’, ‘I’m not backing down’. His personality can be of a bullying tendency. And I just felt that I could be in that room being talked at, feeling bullied into backing down, but I wanted to avoid court at all costs so I thought I’d try, even though I thought ‘we’re going to end up in a courtroom’. When Alistair kept the children and things were very heated between us, I was a bit worried about being in the room with him and mediation. I spoke to the mediators about it and they explained that we could be mediated separately, and that they would organize it so we arrived separately and left separately. That wasn’t needed in the end, but the fact that all those things could be put in place, I think it means that no one should ever feel uncomfortable. I didn’t know that before mediation. If I found someone quite threatening, to be in a room with them would be quite a scary prospect. But to realize that if there is any issue, you can leave that room and they’ll set it up for you; you don’t have to have contact outside of that room. Because obviously you worry about leaving the building and that person waiting for you. So the fact that these things can all be organized and the mediator is aware of them, and at the slightest mention, they’re able to advise you on all those things. So they’re obviously familiar with such issues. Mediation was completely different to how I expected. I didn’t expect the mediator to be as involved. I thought the mediator was brilliant, and the fact that Alistair and I got to say what we felt made us understand each other more. There were still moments where things were a bit heated, but the mediator did, as she said she would, and stopped us. Before going to mediation, I felt that I was going to be bullied by Alistair, but I felt actually very supported by the mediator. We reached an agreement and both came out feeling that a compromise was in place. We hadn’t got exactly what we wanted, but we’re happy with what we’d got. I received the mediator’s letter confirming what we’d agreed, which was incredibly useful. I know it’s not legally binding, but knowing that somebody else witnessed that discussion, I think will help us to keep that agreement because if one of us doesn’t, the other person will instigate mediation again to discuss what went wrong. I’ve gone full circle from being really against mediation to thinking it’s helped massively. Just to have that open discussion with somebody else and to hear Alistair talking to the mediator and me listening to his side, it just makes it a lot clearer. I didn’t think it was going to be successful at all, but it has made a massive difference.
Ernest
Issues: Child arrangements
Resolved by: Mediation
[Ernest]
So I’m a firm believer that talking is always better than fighting in court. I’m passionate about mediation now. I think it’s wonderful that parties can decide their own bespoke arrangement going forward. The costs were a fraction of the cost of a solicitor, and we got a mediation quickly, so no waiting around, no stress caused by delays. I think if we’d gone down the mediation route when we first separated, then the stress, particularly on our children would have been greatly lessened.
To find a:
• Mediator visit Family Mediation Council
• Family law solicitor visit The Law Society’s database
• Resolution member visit Resolution
Support services for:
Women – Women’s Aid
Men – Respect: Men’s advice line
Women and men – Refuge
LGBT – Galop
There are also programmes aimed at changing behaviours of perpetrators, such as Respect.