What is mediation?

Meditation is a form of dispute resolution.

It is a collaborative process wherein a neutral third party (the mediator) helps both sides to meet to try and reach a solution to a problem or conflict.

It is a collaborative process that facilitates a conversation between a couple in dispute.

Mediation is not involved in trying to help a couple to reconcile or get back together. The purpose of mediation is to help a couple come to an arrangement and sort out matters relating to the breakup of the relationship. To put new measures in place to deal with their changed circumstances. When a relationship breaks down, meditation can help the couples sort out the new day to day living arrangements ie who will stay in the family home, who will drop and collect children from school and maintenance.

Is mediation compulsory?

No. Mediation is not compulsory. It is a voluntary process. It generally works best if both people involved attend mediation willingly and are open to engage fully with the process.

By virtue of the Mediation Act 2017, all Solicitors are advised to inform clients on mediation. Furthermore, all family law clients must advise any clients seeking a divorce or judicial separation on mediation. So mediation is not compulsory, but solicitors must and should advise clients on aspects of it.

How it works:

The Mediator will speak to both people individually to get their perspective on the issues between them. Thereafter the Mediator will hold joint sessions with the couples. It could take 3 to 6 sessions to deal with all aspect of the breakup and it all depends on the case.

The mediator is neutral and unbiased, both people help to choose the mediator.

There are huge benefits to be gained from mediation in family law disputes.

Family law mediators are specially trained to help with separating couples. It is a distinct area than Civil matters or medical negligence cases.

A family law mediator can help a couple deal with all aspects of the breakdown of the relationship, ie financial, accommodation needs, access to children parenting issues to name but a few. What is so unique about mediation and what makes it stand apart from other dispute resolution mechanisms, is that it empowers the people involved to make the decisions themselves. When a marriage or a relationship breaks down, it can lead to feelings of grief, loss of control a sense of loss and helplessness. Mediation is a way to enable both people to have their say in a safe, confidential space. It helps them to come to an agreement themselves that they can both live with and have ownership over.

Mediation vs Court

As said previously mediation helps the parties put together an agreement or settlement that works best for their family. The mediator does not make any decisions, their role is to guide and facilitate the conversation between the parties. Both people involved get to hear the other person’s perspective and point of view in a neutral, non-adversarial setting. A mediated agreement can form the basis of a access and maintenance order and indeed a separation agreement or divorce. It also helps promote creative and couple focused agreements as opposed to a one size fits all approach in the Courts. In  most family law disputes the people involved will always be connected even after the matter has been dealt with, they may have to continue co-parenting if they have children or indeed may share friends or even a business. Mediation helps protect that relationship as it enables the people involved to learn to have a conversation together and incorporate nuances or specific  matters into their mediated agreements.

If people cannot resolve matters themselves or through their solicitors, the matters will have to go to Court. This is a more stressful and adversarial method of sorting out an issue of access or splitting of school fees. It is contentious and the reality is a Judge who has no idea of the personal circumstances of your family will decide affecting how you will lead your life.

Family law Courts are busy, and Judges are inundated with cases. They also have very little appetite to adjudicate on personal family matters and are especially loathed to intervene and adjudicate on access.

Mediation is an excellent means of reducing legal fees. If a couple attends at mediation and can reach agreement on the breakdown of their relationship. Their Solicitor can reduce these terms to writing and draft a separation agreement or move by way of a consent divorce or consent judicial separation. This leads to a quicker resolution of matters as access to the Courts for family law cases is very reduced. Also, it massively reduces the amount work required by a solicitor.

A mediated agreement is not legally binding per se as only a solicitor can draft legally binding executed documents. Furthermore, all couples are advised to speak to their solicitor prior to signing a mediated agreement, to ensure their rights are protected. A mediator although usually a legal practitioner cannot give legal advice in a mediation. The mediation agreement can then be used to form the basis of a legally binding agreement on the parties.

The Family mediation Service is a free service available to all. However, it is under huge pressure and there are long waiting lists to avail of the service. A private mediator can prove to be a great option for families. The fee for mediation can be quite competitive and both people involved can split/share the fee. Bear in mind in family law cases that proceed through the Courts, both people must pay their own sets of legal fees. This can cause a massive financial burden and is another reason why couples should seriously consider exploring mediation. Even if they cannot reach agreement on all aspects of the relationship, contentious time sensitive matters like access can be dealt with, while the issue over division of family assets can be dealt with by the Courts.

Thankfully private mediators have adapted the pressures of covid 19 and mediations are taking place online.

There is a shortage of specialised mediators in the West and Northwest. As a qualified practitioner I have a real respect for mediation and have seen how it can help families put the pieces of their breakup back together in a meaningful way to help them enter a new phase of life together. Although they are no longer a couple, they can reach decisions themselves that best suits their children and their families.

Article by Mary McMorland who can offer this service to families in the West and North West of Ireland.  Contact info@carteranhold.ie for more information.