Mediation and other methods of Non-Court Dispute Resolution (NCDR)

What is mediation and how does it work?

Mediation is a voluntary, confidential and non-binding option involving you and your (former) partner/spouse holding a series of meetings with a family mediator.

There are several key points to be aware of in mediation. The mediator facilitates the discussions and provides valuable legal information to enable you to reach future-focussed, practical solutions. The mediator (who may or may not also be a family lawyer) is impartial and therefore cannot advise you or make determinations. However, what the mediator can do is provide the same legal information to both of you whilst helping to move conversations forward towards resolution. Mediators can help you to identify practical solutions designed to work for your family and help you to test prospective solutions to ensure that they are workable and realistic. 

The mediator's role is to guide and support you both to reach an agreement, but ultimately it is your decision as to what you agree. Each of you can consult your own lawyer in the background to take legal advice on the discussions and to understand what is best for you individually.

Mediation is a flexible process that can be adapted to meet your specific needs. It can cover one or a number of issues (for example financial and/or children issues), and matters beyond legal issues (for example, ground rules for future communication), which can be especially important in a family context.

There are various different types of mediation:

• Co-mediation – mediation conducted by two mediators (sometimes one may be a lawyer and the other from a therapeutic background).
• Shuttle mediation – you are each in a separate room (real or virtual) and do not see each other. The mediator 'shuttles' between you to try to help guide you towards areas of agreement.
• Hybrid mediation – professionals (eg lawyers or financial advisors) are involved in the mediation.
• Child Inclusive Mediation ('CIM') – which takes place within a mediation process and is not a stand-alone process. Only specially 'CIM' trained mediators can conduct this mediation, which involves meeting the children (if the children want to have their voices heard in that way) and feeding back to the parents only what the children want them to disclose. Some mediators will ask a different mediator to conduct the 'CIM' part of a mediation, so that they do not feel conflicted about what they have heard from a child.  (See 'What is Child Inclusive Mediation?' for further information.)

An agreement reached during mediation is not legally binding until both individuals have had time to reflect, had the opportunity to take legal advice on its terms, and then confirmed that they wish to be bound by it. For financial agreements to be legally binding they must be made into a court order (see 'Is mediation binding?').

Mediation is a confidential and 'legally privileged' process, which means that none of the conversations from mediation can be referred to during any later court proceedings which might take place. This is designed to encourage everyone to suggest compromises with the aim of reaching an agreement, knowing that they cannot be held to those suggestions if there is no agreement.

There are limited but important exceptions to confidentiality: the mediator must report to the relevant authority where someone may be at risk of harm or there are indications of an intention to commit an unlawful or criminal act or concerns regarding money laundering. There is also a practical exception to confidentiality, which is that the financial information you provide in mediation is on an 'open basis', meaning it can be referred to in court; this is to ensure that the information provided in mediation can be used in the court process when relevant. 

The number and length of mediation sessions is variable – three to five is typical, but it depends on the scope of the dispute and the circumstances of the particular case. You can embark on mediation at any stage. It may be the first and only method that you use to reach a resolution, or you could agree to pause court proceedings to mediate.

We have a number of mediators in our team: Suzanne Todd, Diana Parker, Claire Blakemore, Adele Pledger, Jennifer Dickson, Jemma Thomas and Natalie O'Shea. They will discuss mediation with you, along with its advantages and disadvantages, so you can make an informed decision.