Resolving conflict – the mediator’s way

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Can conflict ever be a good thing? In the context of divorcing and separating couples, the answer is probably not.

Most people would agree that being in sustained conflict can be exhausting, damaging, stressful, unhealthy and unproductive. Most strive for a harmonious balanced existence, free from the stresses and complexities that life invariably throws our way. When a marriage or partnership breaks down however, sometimes the situation can become overwhelming. It is normal to feel angry, upset and frightened or insecure about the future.

Objectivity can often take a back seat when dealing with one’s own divorce process. Many turn to mediation to try to resolve issues, move forward and come to terms with the breakdown of their relationship. Communication problems are often a key stumbling block in attempting to sort out key issues such as children, housing, money and other fundamentals. Often it is the case that “the most important thing in communication is hearing what isn’t being said. The art of reading between the lines is a lifelong quest of the wise.” It is how parties communicate and deal with disagreements post separation that can be crucial to the final outcome. And this is where mediation can play a key role.

So, what is mediation?

Mediation offers a forum for parties to have a discussion and try, with the help of the mediator, to come to a resolution. It is important that parties are aware of the following fundamental principles of the mediation process:

  • Confidentiality – mediation is a confidential discussion that cannot be repeated in Court. This enables the parties to have an open and safe discussion about the issues that are important to them without feeling that anything may be repeated to a Judge if their case ends up going to Court. The parties can, of course, tell their solicitors what is said in mediation. The confidentiality rule can be overridden if safeguarding issues arise, for example in the event that a child may be at risk of harm or indeed one of the parties.
  • Voluntary – mediation is an entirely voluntary process. Mediation is very much encouraged and its benefits are clear, but to mediate is not compulsory. There is a requirement that if an application to the Court is required (with some exceptions) the applicant must attend a MIAM (a Mediation Information and Assessment Meeting). The purpose of this meeting is to explain the full range of dispute resolution alternatives to avoid Court intervention. The processes are explained, and the mediator assesses whether mediation might be appropriate and invites the other party to attend. If the latter chooses not to attend, or mediation is simply not appropriate, then the mediator will sign the MIAM form and the party can then proceed with their application to the Court.
  • Impartiality – it is vital for the clients to understand that the mediator is entirely neutral, does not give legal advice to either party, and is completely non judgemental in their approach. Much explanation of this is given at the start to underline the importance of the principle.

How does it work and is it for me?

Mediation can take many forms and should be tailored to what the parties want – after all, it is their process. Normally parties are initially seen separately and there then follows a number of joint sessions. The number of sessions again depends on each individual case.

Mediation is not for everyone and there may be many reasons why someone might not feel comfortable in a mediation setting. They may feel that they will not be listened to, be intimidated by the other party, or be afraid to speak freely. They may think that the other party will not make full and frank disclosure of their financial details and therefore the process will be a waste of time. These are normal concerns. The important point to remember that mediation is about having a discussion, airing concerns and finding solutions. The process can help to tackle any polarisation or hostility that can quite easily take over when parties embark down the separation road.

Reaching agreement

If the parties reach an agreement in mediation, a Memorandum of Understanding is drafted by the mediator at the end of the process. This is not a legally binding document. It simply sets out for the parties and their respective solicitors what has been agreed. That agreement must then be transposed into a Consent Order (for a financial agreement) for the Court to approve. The parties are not legally tied to their proposals after the mediation process until a concluded agreement has been reached through solicitors, or through the sealing of a Court Order.

It is commonly accepted that a solution reached by separating parties through negotiation and discussion rather than one imposed by the Court process is more likely to leave the parties to a divorce or separation less bruised and battered by the process. They will “own” the outcome as they were genuinely part of the decision making. Most people do not relish conflict. Conflicts are frequently fuelled by miscommunication and misunderstandings. Surely it is better to “shake hands” at the end of a deal than walk away with a clenched fist and a closed mind.

If you would like to discuss the process of mediation further, please contact Lyn Brisley or Roger Gurney on 01733 888888 or email us.