Choosing family mediation over the divorce court – what you need to know

family mediation

Family breakdown…it seems to be all around us, with 42% of marriages now expected to end in divorce. But given the chance, wouldn’t a family rather find a more amicable way of dealing with break ups than a lengthy battle in court which quite frankly is miserable for everyone involved, but particularly the children? Cue family mediation,  a more peaceful alternative which still so many seem to be aware of when splitting up. Following on from Family Mediation Week which has just come to a close, I interviewed a spokesperson from the Family Mediators Association to find out more about the benefits and practicalities of family mediation.

What sort of family situations can mediation help with?

Family mediation can help with almost every type of family situation. Most people who come to family mediation are in the process of separating or divorcing, or want some help with family arrangements after a separation or divorce – in particular what arrangements should be made about the children and what to do about family finances. Equally, family mediators deal with all sorts of family disputes, including communication issues plain and simple.

How can mediation help to stop tearing families apart and creating rifts between family members?

Family mediation involves people sitting down and talking to one another with the help of a professional mediator who can help them have a conversation together. Sometimes this is the first time the people will have tried to talk to each other about finding a way forward that will work for everyone in the family. Conversations don’t necessarily change things for the better, it’s true, but most of us know that if we don’t try to talk to each other about how to make things better, they definitely won’t get better. 

Although there may be some discussion about the past, to help everyone understand the problems that the family faces now, the focus is on what needs to happen in the future. This focus helps people to move away from the things that divide them – the things that went wrong – and to think about the things they both want for the family, especially the things they both want for the children. The conversations that happen within family mediation very often involve both people acknowledging that they have done and said things that they wish they hadn’t, which can help both of them move on. They also involve talking through very practical issues, including some things that only people in the family will really understand. 

And that is the biggest point: in family mediation things only get decided if the experts on this particular family – the people in the family – can agree about what is best for their family (usually each other and their child or children). This encourages people to make suggestions that are in the middle ground, taking into account what is important to the other person. Arguing the case through professionals or the court system can encourage people to think only about what they need and want, and why the other person is wrong about what they need and want, and this process can create rifts between people that may never heal –  and wounds that haven’t healed go on causing pain. The cases where this matters most involve parents whose arguments in court make it more difficult for them to work together for their children’s benefit, which in turn makes the children’s lives much worse than they need to be, not just during childhood but throughout their lives.

What are some of the benefits of family mediation over going to court?

Going to court to get an answer to family problems costs much more than mediation does (families on low income can still get legal aid for mediation whereas it has been withdrawn for most family applications). Many families that go to court find they have spent more having the argument than they were arguing about in the first place. Getting a final answer from the court also takes a long time – mediation can begin whenever the family decides and the process doesn’t take long – if a family isn’t able to work together that will usually become clear quite quickly and some families need only one mediation session to sort things out; very few mediations go on past six sessions. 

But the biggest benefit of mediation over court is that in mediation the family stays in control of its own future. In mediation, the family can take as much time as they like to talk through the different options and come up with a unique solution that works for them but might not for anyone else – whereas in court the very busy judges won’t have time to find a solution that takes into account all the particular circumstances, and very often the judge will end up imposing an arrangement that neither person thinks will work. In mediation, unlike court, the family gets to focus on the things that the family thinks are important – so for example they can give priority to the interests of young adult children still living at home, whereas in court there are rules about what the court will and won’t take into account. In mediation and in court the view of children over the age of 10 will be taken into account, but in mediation the family itself decides who the children are going to talk to and how to take what they say into account.

What can someone expect from a mediation session?

In every mediation session everyone should feel that they are involved in a conversation about the future in which their voice is heard and in which they feel safe enough and confident enough to listen calmly to the other person. Different mediators achieve this in different ways but all of them are working to create a safe space in which the family can have a difficult conversation. Usually the people who are going to make the decisions will be in the same room together throughout, but sometimes it is possible to ask the mediator to move between people in different rooms, where that is going to make the conversation about the future easier. It often happens in mediation that separate meetings are held with other family members, as even though they won’t be making the decision it is a good idea to find out what they think.

What are the different stages of the mediation process?

The first step in a mediation involves each of the people who will be involved in making the decision on the family’s behalf individually meeting with the mediator, to explain the situation from their perspective and so that each person and the mediator can make a decision about whether mediation might be a good option for the family. Very often the mediator and the family will work out what will be the best environment to help that particular family have the conversation, uniquely suited to meet their needs.

Then, at the first mediation session, everyone will sign an agreement to mediate, which explains what the rules of mediation are and how the individual mediator likes to work. The mediator will then help the family create an agenda for the discussion, focusing on what the family thinks is important. Usually the first session does include some talking about the past, so that everyone can understand better what the family’s current problems are, but even at this early stage the most important thing is to find out what people are hoping the family situation will be like in a year or so’s time. If there are children they will be an important focus of the discussion – the mediator has a duty to help you think about what the children need and want.

The mediator is very likely to recommend that any child over 10 years old is invited to contribute their thoughts and ideas to the discussion. The mediator will ask the family to identify different options and will then help the family to think about the advantages and disadvantages of each option, again focusing on the interests of the children, if there are any. In practice, many families quickly find a solution that looks likely to work and the real effort goes into thinking through all the practical issues. Finally, the mediator will help the family draw up a written version of their ideas about the future, which should deal with everything that the family thinks is important about the solution, focusing on specific practical things that will need to happen.

What would you say to a family currently experiencing rifts considering mediation?

Find an FMA mediator local to you who you think might suit you and talk to them! Mediators come from a range of backgrounds and have had different experiences – just like you. Look at their website and get in touch to find out more.

Most mediation services are happy to have a conversation with you about what they offer without asking you to commit to anything – equally it won’t be until you sit down with the mediator for your information and assessment meetings and really talk through your situation that the family will be able to decide whether or not mediation is a good option for you. 

Each person should think about what they want the future to look like – and what they think needs to happen to get there. If having a conversation definitely won’t help, why won’t it and what will? Are you going to be comfortable in the future explaining to your children or even yourself that you handed your family’s future to a busy professional who knows little about your family rather than trying to work together with the help of a mediator? What advice do you give your children about how to solve a problem which involves someone else?

If there is only one thing you could say about mediation it would be…

Mediation helps people to have difficult conversations with one another –  even if people can’t find a good working solution to their problems in mediation, having a conversation with someone who is part of the problem is likely to be worthwhile! But bear in mind these are difficult conversations – if they were easy you wouldn’t need the mediator – and if you come expecting the other person simply to agree with you, you are likely to be disappointed. A real conversation involves talking and listening – it involves thinking about how best to get your message across; it involves thinking about what is being said and sometimes it involves changing your mind!

Anything else you would add?

Mediation doesn’t work for everyone but research suggests that most people who try mediation come away with a solution that they believe will work for their family. More importantly perhaps, research also suggests that the solutions that people find in mediation last longer and result in better family relationships than solutions imposed by the court. (For anyone who is interested, there is a good survey of the research here ; my personal favourite is the study conducted by Emery.

Would you consider family mediation over the divorce courts?  Do leave a comment and share below.

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2 comments

  1. Great one. I work for a family law office and take care of their web-based social networking. Family Mediation Week was a major thing a week ago which we secured loads. I’d love to share this on my twitter if its all the same to you.

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