Mediation is an effective out-of-court alternative to court divorce that allows couples to come to a decision about the details of their separation in a cooperative way. Mediation has many benefits for separating couples, including generally being lower in cost and faster than going to court, and being more flexible and convenient since couples can choose who acts as their mediator as well as when they have their appointments. Mediation can be particularly helpful for couples with children as it focuses on a collaborative approach and paves the way for better communication as co-parents in the future. Mediation can also be used for the dissolution of a civil partnership as well as for cohabiting couples who wish to separate. And once an agreement reached via mediation can be made legally binding by taking it to a solicitor to convert into a Consent Order.
If you think mediation might be right for you, here’s how to make the very best of your mediation sessions to make them as positive as possible and find an outcome that is fair for everyone:
Mediation is not couples therapy
Mediation is a practical method of dispute resolution – not a place to work through the emotional side of your relationship breakdown. You may well benefit from couples therapy during the process but mediation is not the place for it. Instead, try to focus on the practical, logistical aspects of your separation – finances, living arrangements, the division of assets, children’s arrangements, and your next steps in finding a positive outcome. Concentrate on what you want for the future, not the issues that brought you here. And while mediation may not be couples therapy or a substitute for it, you may find that a taking a collaborative approach naturally helps you to communicate better with your ex and work through your separation in a much more positive way.
Understand what a mediator can do for you
A divorce mediator is a neutral, objective third party who is there to assist you and your spouse in understanding one another’s point of view when it comes to coming to decisions about your separation. A mediator’s job is to guide you in finding a resolution that suits everyone and to steer you away from unnecessary arguments by focusing on the solution – not the problem. A mediator can also give you advice on the practical legal aspects of separation and the different options for moving forward. However, a mediator cannot make decisions on your behalf nor represent either of you individually as a solicitor. Their purpose is to facilitate the decisions you make collaboratively as a couple. But if, after trying mediation, you find that you are still unable to come to an agreement, you may need to take your case to court instead.
You don’t come to mediation to argue
Mediation is a conversation about how to proceed with separation, not a conversation about what annoys you about your spouse or how you think the divorce is their fault… You might come to mediation because you’re finding it hard to agree with your ex, but the purpose of mediation is not to continue the argument with an objective adjudicator – it’s to find a resolution. Try to focus less on the problem (or the causes and symptoms of that problem) and more on the solution – how to come to a fair and reasonable agreement. You may not feel like your ex deserves a fair settlement but that’s beside the point. If your spouse is the argumentative one, try to stay calm and let your mediator guide the conversation back to something more productive. Finding a way to settle your differences in mediation can make all the difference between a dignified, amicable, out-of-court resolution and costly litigation. The purpose of mediation is to stay in control of what happens to you, your children, and your finances – if mediation fails you will end up in court where a judge will be responsible for making decisions on your behalf, so put aside the arguments and focus on a solution.
The best thing you can do is listen
Mediation is an opportunity to put across your side of things but it’s also a valuable opportunity to hear your spouse’s perspective, too, and perhaps understand a little more about how you got to this point and how to move past it. You don’t have to always agree, but when it’s your spouse’s turn to talk, wait your turn and try not to interrupt. You will get your chance to speak. Remember, mediation is not about arguing your case (see the point above!) – it’s about coming to a resolution. Your mediator is there to help you find the middle ground so make sure to listen to them, too!
Be open and honest
From a practical point of view, you are legally required to disclose information about your finances, assets, and circumstances during separation, but it’s worth being as open and honest as possible about the separation itself, too. Explain your point of view and give reasons for your requests rather than just making closed statements, eg: “I’d rather the kids stayed in the family home for a few more years so they have a bit of stability instead of selling up right away…” as opposed to: “I am NOT selling the house, full stop!”
Similarly, if you’ve already moved on or have made some major life changes since the split, it’s a really good idea to give your ex a heads up about your new situation rather than having them discover you have a new partner or are planning on moving across the country or want to change the kids’ school in your very first mediation session. Communication is key, as always – and hiding things will only cause arguments and potential upset down the road.
Take a break if you need to
If you’re struggling to keep your cool or it’s all feeling a bit overwhelming, don’t be afraid to ask for a break or to continue the discussion at a future session. One of the main benefits of an out-of-court method like mediation is the ability to set the time, date, and duration of your appointments, so take your time and make sure you’re in the best headspace to deal with things. Remember also that it’s possible to carry out mediation independently (and via Zoom or FaceTime in the current pandemic situation!) if you’re finding it difficult to be in a room together with your ex. Mediation is flexible, so find a way that allows you both to stay level-headed and reach a mutually beneficial resolution together.
Pave the way for better communication in the future
Divorce is not usually a particularly quick process and there are often issues and details that need continuing input for months (or even years) after you’ve come to a ‘final’ decision. If you have children with your ex, you need to be able to continue to communicate and co-parent beyond separation, and even sorting out property (or sharing a pet!) requires ongoing communication. Make the most of mediation to set the standard for civil, productive conversation with your ex and find a way to communicate that doesn’t devolve into bickering and disagreement. Not only will it make the whole process a lot easier but you might also find that better communication also helps you to move past the difficulties of your break up and move on with positivity.
To speak to an experienced family law professional about mediation, separation, or other forms of out-of-court divorce, get in touch with us at Frances Lindsay & Co – or arrange a free 45 minute family law consultation to discuss your options.