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» What is Mediation?
» More about Mediation
» Does mediation work?
» What is involved?
» What is the cost?
» How does the cost compare with going to court?
» Can I/we get public funding (‘Legal Aid’) for mediation?

What is Mediation?

Family mediation is a process that can be used to resolve family disputes.  If you are involved in a family dispute then you can ask a mediator to provide you with help in finding your own solution. The mediator will be impartial and the whole process is confidential. Mediation is not appropriate to every case but it has many advantages over the legal process. It is inherently less adversarial and tends to lessen rather than inflame conflict. The process is more flexible and may address wider issues involving different family members. It is generally very much less expensive because the parties are able to effectively share the cost of one mediator rather than pay for two separate solicitors.

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More about mediation

As a family lawyer I realised long ago that court is not the best place to deal with the majority of family disputes.

A consequence of relationship breakdown is that communication between parties becomes increasingly difficult as conversations deteriorate into arguments and trust is lost.   At some point, after one or both have given up on any prospect of reconciliation each person seeks legal advice.  The legal process is adversarial and the duty of the family lawyer is to look after the interests of their client.  Correspondence from lawyers, even if written with the best of intentions and with all appropriate professional skill may often be received as one-sided and provocative.  It may provoke a similar response and the dispute then escalates. It is not the fault of the lawyers who are simply doing their job and following their instructions.

Many cases are of course resolved by agreement but the process can cause lasting damage personally and financially, especially if it ends in a contested court hearing.   As a barrister I have seem many cases in the latter stages of the litigation process, by which time the parties have often incurred very considerable legal costs.

Mediation provides many advantages over litigation.  The first is that it avoids the stress and uncertainties involved in going to court.  A court outcome is effectively imposed on the parties and it may not be an outcome that either party is satisfied with.  The other advantages are perhaps less obvious.  Mediation encourages the parties to confront rather than avoid or ignore the other party’s point of view.  The participation of both parties in mediation also enables a consideration of a wider range of possibilities and outcomes.  The solution reached in mediation is that decided by the parties themselves rather than one imposed from outside.  If you achieve a solution in mediation you are very much more likely to stay on reasonable terms with your former partner, and if there are children the benefits will be far reaching to all of you.

There are of course many cases where court is unavoidable, particularly those involving intimidation, threats or violence.  For mediation to work the parties must have freedom to negotiate without fear or undue pressure.  It is likely to be identified at an early stage if the case is not suitable for mediation.   If you are not sure I would suggest you ask rather than dismiss the option.

If you are involved in relationship breakdown you may feel pressured by your partner or family, feel ignored or feel that your partner always has to be right and never sees your point of view.  In many ways, instructing a solicitor may seem the most obvious and appealing route.  After all, you then have someone on your side. But at what cost? Mediation, where you are more closely involved in dealing with your partner may seem more challenging at first but the results are likely to be worth it.

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Does mediation work?

If the case is suitable for mediation there there are very good prospects of mediation leading to a solution.  Statistical information is not readily available but good established mediators report success in 4 out of 5 cases.  In those cases where the outcome is less successful mediation is seldom a waste of time.  The process often serves to narrow the issues and there is much better chance that any legal process afterwards will lead to a negotiated settlement rather than a contested hearing.

Studies carried out in the USA show that where parties reach a mediated solution they enjoy much greater levels of contact and better long term relationships with their children.

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What is involved?

The process begins with an Initial Assessment Meeting.  The purpose of the meeting is to determine suitability, explain the process and explore funding options.  The meeting may involve one or both parties.  Some mediators will charge a fee for an initial meeting.  Many do not.

Prior to the first mediation appointment both parties will receive ‘agreement to mediate’ forms for them to consider and will complete ‘referral forms’ detailing essential information.

At the first mediation appointment important aspects of the process are explained.  These include matters such as confidentiality, what the parties can expect from the mediator and what the mediator expects from the parties. Both parties will sign the ‘agreement to mediate’ to acknowledge their understanding.  Mediation may then begin.

Completion of the process may involve attending for anywhere between 2 and 5 sessions depending upon the issues and complexity.  At the conclusion of the process the outcome is recorded in a signed memorandum.

The outcome of mediation is not legally binding as the process is conducted ‘without prejudice’ but the existence of an understanding between the parties means that it is more likely to work.

In the case of a financial mediation the mediator will also prepared an ‘open financial statement’ recording a snapshot of the financial circumstances of the parties.  That document is not ‘without prejudice’ and it may be used for the purposes of putting the understanding into a court order if the parties wish to achieve a full financial separation.

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What is the cost?

My usual charging rate for mediation is £125 per party per hour plus VAT (£150 per hour inclusive).  A full mediation session lasting an hour and a half will therefore cost £225 per person including VAT.

The total cost of a mediation leading to a completed memorandum of understanding after 3 sessions would therefore cost around £675 per person.

In mediation no charges are made for routine telephone calls or letters.  My charge for additional paperwork is £150 per hour and I will typically complete a memorandum of understanding within an hour to an hour and a half (£180 inclusive shared between 2).  The overall cost of the process would be £1,530 (shared between 2).

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How does the cost compare with going to court?

To some extent this is a ‘how long is a piece of string’ type of question. The rates charges by solicitors in private family law proceedings vary considerably.  The amount of time that each fee earner may spend on a case will also vary (even if you gave each solicitor identical cases, the time spent and the fee charged would vary).  I can therefore only provide a vague indication and my figures should be regarded as illustrative only.  If you wish to know actual figures then ask your solicitor to provide an estimate.

I am able to say that a fairly ‘typical’ costs schedule produced at the conclusion of a contested hearing which would include counsel’s fees and VAT could be expected to show total privately funded costs in the region of £5,000 – £7,000 per person in a relatively uncomplicated case involving modest assets.

This means that the total cost to both parties of an average case might be £10,000 to £14,000. The costs in many cases are very much higher.

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Can I/we get public funding (‘Legal Aid’) for mediation?

Public funding is available for mediation under the government’s ‘Legal Help’ scheme, subject to a means test.  The following is a summary of the current provisions but as they may change you must check the situation at the time you apply.

Currently, if your gross monthly income is over £2,657 you won’t get Legal Help. ‘Gross income’ means before tax and national insurance are taken off and it excludes certain social security benefits. If you have more than four children, this limit goes up by £222 for the fifth and each additional child. You have to include your partner’s income unless your partner is the person who you are in dispute with.

If your gross monthly income is £2,657 or less, you may qualify for Legal Help if your disposable income is less than £733 per month.  ‘Disposable income’ is the amount of income you have left after deductions have been made for national insurance, tax, maintenance, housing costs and certain other expenses. Also, if you have a partner who isn’t earning or if you have children, a certain amount of your income won’t be taken into account. If your partner is earning, their income will be taken into account, unless your partner is the person who you are in dispute with.

I do not offer mediation on public funding but other mediators do, so if it appears that you qualify for Legal Help  I would be likely to recommend you seek mediation elsewhere.  If only one of you qualifies for Legal Help then I can mediate for both of you provided that my fees are paid entirely by the person who does not qualify.

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Thank you for reading this far.  For more information, or to arrange a mediation, please contact me via the details on my contact page .