Mediation: A Process Towards Settlement

When legal problems arise, going to court is seldom the only option. In fact, the courts are more frequently being recognized as a last resort. There exists a myriad of other (often cheaper) ways to resolve disputes, some with surprisingly long histories. Mediation is one such method, helping parents to find their own solutions, rather than having solutions imposed by another.

What is Mediation?
Mediation is a highly flexible and adaptable method of dispute resolution, utilized by families and commercial enterprises alike. At its core the process is a negotiation between disagreeing parties but with the inclusion of a neutral third party, the mediator, who aids both sides in reaching an agreement.

Depending on the parties’ needs, a mediator may play a ‘facilitative’ role (opening communication, preventing deadlocks and helping parents to think creatively about solutions), or a mediator can adopt an ‘evaluative’ approach (assessing the strengths and weakness of respective arguments and providing a reality-check if either side has unrealistic expectations.) Whichever style of Mediation is sought, it is the parties who ultimately decide whether to agree, and on what terms.The mediator is not there to pass judgment, or to impose a settlement.

Best of all, Mediation can be a source of genuinely creative and tailored solutions, since the settlements that you agree upon can go beyond what a court would have the authority to order.

Of course, there are times when recourse to Mediation would be inappropriate, or even impossible. Where the matter concerns domestic violence and/or child abuse, Mediation would not be suitable. The same can be said in circumstances where a partner has gone missing, and you have no way to contact them.

How to begin
When there is a family dispute involving children, a court will (usually) not consider an application until a Mediation Information Assessment Meeting (MIAM) has taken place. These are meetings where you have the opportunity to meet with a mediator, who explains the services he provides and helps to assess whether your dilemma would be well suited for resolution by Mediation.

Mediation cannot begin unless everyone concerned wishes to take part. It is typical for Mediators to contact both sides before the first Mediation session takes place, as they will want to ensure that everyone is engaging in the process voluntarily.

To make the Mediation as worthwhile and effective as possible it is crucial that, before the Mediation begins, you give careful thought towards:
- what you want,
- what is necessary,
- what you can live with and,
- (thinking creatively) what might be a solution.

Stages of Mediation
At the start, the mediator usually explains how mediation differs from other services you may have already experienced, like receiving legal advice, relationship counseling, or therapy. The mediator will also discuss nature and limits of confidentiality and you will be expected to sign a corresponding confidentiality agreement. Part of this will be an agreement that all facts relating to financial issues have to be provided openly.

In Family Mediations the parties typically meet in the same room, alongside the mediator, throughout the whole process. It is also typical for Mediations to be divided into around four sessions, each lasting about 90 minutes and each focused on a specific problem (for instance: finances and property allocation/childcare arrangements/child maintenance). It is the mediator’s responsibility to manage the mediation and to ensure that issues are considered in a logical order; though they do seek input beforehand.

After each session, the mediator will most likely draft a summary for you; detailing all of the points discussed, and any agreements made so far.

Bear in mind, however, that the flexible nature of Mediation means that some features may be adapted to suit the needs of specific clients, or altered according to the policies of specific mediation providers.

Other ways of Mediating
Family mediators have historically avoided separate meetings with parents, mainly to prevent suggestions of partiality from arising. Nonetheless, there are now a greater number of mediators who are willing to apply a method of Mediation known as “shuttling” or “caucusing”.

Shuttling takes place after a joint meeting, when both sides are taken to separate rooms and begin a process of brain-storming. Apart from one another, the parties work towards making offers, concessions and agreements and they are encouraged to come up with new answers to the problems they both face. In this process, the mediator acts as a “shuttle-diplomat”, moving between the rooms, passing on each side’s ideas and suggestions and recording any specific agreement which are reached.

Shuttling will likely be a lengthier process, but it can also prove invaluable when negotiations are at a standstill.

Another possible change is to the number of mediators involved. Models of ‘co-mediation’ exist where several mediators work, in tandem, to help the parties find a resolution.

After the Mediation
Mediation is proving to be a highly successful method of resolving disputes; the Centre for Effective Dispute Resolution reported that some 70% of cases referred to it, for Mediation, resulted in an agreed settlement. Not only that, but even when a settlement cannot be reached, the process of Mediation often serves to narrow down the issues, which saves time and thereby lessens the duration of any stress, anguish, or frustration.

When Mediation is successful, and a proposed settlement is reached, this will normally be recorded within a Memorandum of Understanding. Each side must be given the opportunity to consult with their legal advisors before being bound by such an agreement.

One, less obvious, benefit of Mediation is that it has the potential to show to parents a new way they can go about solving future disputes. When successful, that mediation stands as proof that two people, though they have separated, can still uncover their own solutions to tomorrow’s quandaries.

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