Family breakdowns are costly – there is no getting around that fact.

Assets are being split in two, while practical arrangements take time and effort to resolve. The uncertainty and emotional stress around this are heightened by the fact that at this crucial stage, communication is often at its worst.

Improving communication; being heard and finding a way to listen is often key to finding common ground and focussing on the issues to be resolved. This can be difficult to achieve where people become anchored to a particular position, unwilling to move towards compromise. However, even entrenched disputes can still be mediated effectively where there is a willingness to try. That’s because mediation is:

voluntary – everyone there, the participants and mediator, must sign up to say they want to be there.

confidential – the conversation stays in the room.

impartial – the mediator is not there to take sides and the focus is facilitating the conversation.

What does a family mediation look like?

On a practical level the mediation process is straightforward. Both participants must sign up to the mediation process and start with an individual intake session with the mediator. The intake session allows the mediator to explore the issues at hand and learn about the participants and their needs. Importantly, the objectives and conditions of mediation are explained, and the mediator needs to assess that there is a clear willingness to take part. This is crystalised with the participants signing the agreement to mediate.

Often, the first joint mediation session focusses on clarifying the issues and needs of the participants and planning the next steps. Gathering relevant information is necessary to move a conversation onto the next stages. As each mediation session progresses, it is expected that possible options around settlement will be explored, ideas generated, and reality testing done around those potential outcomes.

The mediator can provide general information, but in some instances participants will need to obtain individual legal advice – it is expected that there will be parity in terms of participants having that opportunity. Having some advice from a lawyer before starting mediation is often helpful. Lawyers attending mediation with their clients is not the norm in family mediation, but it may be worthwhile in some instances, particularly if the underlying issues are complex.

What measures success in mediation?

Mediation is not about one person winning or losing – generally most family cases, litigated or not, are not about this.

For most couples, success is reaching agreement. If agreement is reached, this can be summarised in a mediation summary which remains confidential – the mediation summary can inform the legal advisors on how to formalise arrangements. In Scotland this would be with a formal agreement i.e. a binding contract.

Sometimes the issues being mediated will resolve without a definite conclusion, but in most instances with the participants having a clearer understanding of the differences or the issues being narrowed.

In our experience as family lawyers and mediators, mediation is rarely a waste of anyone’s time (or cost). Participants generally feel empowered by the decision to mediate and self-determining how to resolve issues between them. Where there are continuing issues around communication, mediation is a platform a couple can come back to if communication breaks down again.

Related News, Insights & Events