20th Jan 2021

Should I Try Family Mediation?

By James Pirrie

Should I Try Family Mediation?


Briefly “yes, usually” if you are looking at parenting issues. For other issues, read on…

What is it?

Family mediation will usually involve you and your ex in a room (now usually a zoom video conference call) working through the issues you face together. The mediator is neutral, should be experienced in the territory and is there to help you see whether you can find solutions to the problems you face.

Their knowledge of what is usual and “standard” anchors the discussions to what is realistic. Their training should enable the conversation to be better managed at the point where (around the kitchen table, searching for answers) it may have come off the rails.

Why might it work better than some alternatives?

For those who can make mediation work, there is no doubt that family mediation can really work well:

  • It is likely to reduce the number of costly professional hours involved;
  • Conversation is immediate and misunderstandings are likely to be cleared up faster than the email-based dialogue common in traditional negotiations;
  • You are centrally “there” and able to gauge more quickly what is going on and perhaps find creative alternative ways forward;
  • You and your former partner will be hearing together and at the same time, the same guidance and direction (for example, about law principles), which means there is less room for misunderstanding;
  • Family mediation focuses on your concerns (rather than what might make it onto the court’s agenda) and can engage your values (rather than law-principles alone) … so the future crafted in mediation is more likely to make the best of your situation because it reflects more of what matters to each of you;
  • It can (compared to a court-based process) start fast which is so important when there is a risk of you facing (and/or developing) increasingly hard positions in the negotiations;
  • It usually starts in the likely zone of settlement, rather than ‘out at the boundaries’ whilst each side assesses how reasonable the other side is going to be in their approach to the case.

When should I look elsewhere?

But it is not for all cases. You might think of a family mediator as providing juggling services – better mediators can juggle more balls successfully – but all of them are likely to have their limits.  For example:

  • Readiness to mediate: people emerge from separation at different stages and recover capacity to look to the future at different rates. Not only do those using mediation need to be at the point of being ready to look forward but it is harder if they are at different stages as it starts;
  • Facility with the issues: some former couples have just developed a vast gulf in capacity to deal with problems. If one of them is a swimming seal in the fathomless complexities of the finances (and/or a hard-nosed, down-at-the-wire style negotiator) whilst the other is panicking to keep their head out of the water, this is not likely to be the best process for them to reach a fair outcome. The safer dialogue is likely to be had between the parties’ representatives. A mediator may cope where the disparity is less but it is another ball in the air, taking focus and swallowing capacity;
  • Other power imbalance: mediators are alive to coercion or tacit threats and aim to balance inequality, but this may require considerable effort – fine if there is not so much else going on (for example if the numbers are straight-forward) but in combination with other issues this may make mediation harder to manage successfully;
  • Trust & audit: where there is profound mistrust for example over the numbers and careful audit of the information is going to be needed, this will be an additional load to manage;
  • Stress: if dialogue between you both is still very fraught then the process is going to be harder and (to change our circus metaphor) momentum on the unicycle of progress harder to build;
  • Diffidence or unmet commitments: if one person is struggling to make their mind up whilst the other is impatiently racing ahead or if one side is saying one thing in the meetings but failing to deliver on them by the next, this too may undermine the mediator’s ability to achieve progress.

The above (and other) elements being present may mean that mediation is not ideal … but:

Other professional help

The skilled mediator will be able to manage more of these challenges.  Build in:

  • A co-mediator from a counselling background;
  • An accountant to give insight as to the true values of company assets or to carry out analysis of historic transactions;
  • A pension adviser to unpick complexity around pensions and give guidance in the room as regards the value, importance, tax savings and options;
  • A financial planner to give projections of how various choices are likely to play out over time;
  • Or even a barrister to give careful law-guidance.

Then the process can reach further and offer what will feel like more robust and stable assistance in a wider variety of cases. 

Your own advice and support outside the system is likely to provide significant stability for what is inevitably a challenging process. Whilst for some launching straight into mediation works well, those for whom trust is at a lower ebb or where things have got difficult or ugly may well need some more help, which may be either or both of:

  • A lawyer, to clarify what are the clear entitlements or [equally valuable] that there is nothing clear at all;
  • Therapeutic support.

Hybrid mediation would see your legal support integrated into some or all of the discussions.

Top tips

Recognise that this is the place where your best agreement, at lowest cost, may well emerge. You may also realise that there is likely to be value in your helping the mediation to be a success:

  • Always hold in mind the value of this opportunity: progress through this chapter may be like skating across a pond. The ice will be thin in parts and what lies underneath, cold, dark and muddy. Do what you can to make it work because if it fails, the likely litigation may involve costs higher than the potential gains and may leave you wishing that you had pulled back at the crunchpoint, regrouped and found new alternatives.
  • But don’t press on endlessly: Mediation is also vulnerable to the iterative discussion: parties can dance off on tangents or simply spin in circles as the sheer unacceptability of the inevitable is contemplated over and over.  Mediations should start with energy and carry through to a clear end.  If that end is not at least starting to emerge by the end of session three then (even if it might resume at a later date) other ways forward should be considered.
  • Be kind: You can be robust about what you are seeking and still be generous and kind to those involved with you in this process and assume the best as regards their intentions. Being hard on the problem but kind to everyone involved, you are likely to help to keep the other person at the table longer and whilst you are there, progress can still be made.
  • Carve out the time for it: Mediation is likely to work best where it acquires momentum.  Do what you can to make sure that you have time to give to the meetings and prepare properly. Delays will mean that momentum is lost.
  • Don’t commit and fail to follow through: Think carefully before making commitments in mediation; nothing will undermine progress in mediation quicker than saying one thing and pulling back or doing another.
  • Get support: You are likely to need legal help to bed in the agreement at the end. You are very likely to want to have legal advice prior – or at least along the way – if you have any concerns as to whether the emerging solution is right for you. Recognise that this is a tough transition that you are going through and give careful consideration to personal support from a counsellor to help you make sense of it all.
  • Always be conscious of your LATNA: LATNA stands for the likely alternative to the negotiated agreement: don’t discard final solutions emerging in mediation without being very sure indeed that you are going to do better in the alternative process that you now face.

And above all, get the right mediator …

At FLiP we know that the first mediation and the chance to get things finished (and finished well) will not come again. This is a unique opportunity for people to see themselves across that icy pond and out the other side, as well equipped as possible for the future that beckons on the other side.

It is therefore a great opportunity to help parties:

  • To build the different relationship for the future (that they may need as separated parents, for example); and
  • To find a space from which they can (elsewhere and with support) start to make sense of the past.

The seriousness of these responsibilities reflects in the training we undergo, the resources we bring together, the thought and energy we give our mediations and the efforts we commit to helping you forward.

We have countless years of experience between our team of mediators. Legal 500 UK ranks us as the only tier one firm for mediation, commenting on: “a human approachable and solution focused team”.  Mediation was in the DNA of the practice when it was set up in 1995 (all of our founders were mediators) so it is centrally part of what we do rather than a bolt-on service.

We think that the key elements to success in the services we provide include:

  1. Presence: you will need to feel safe and want us to take control of the process;
  2. Tone: the issues are challenging – you need the meetings to feel positive;
  3. Dexterity & flexibility: you will need to be supported so as to create, examine and adopt or discard (or build upon) options quickly and explore the what ifs of emerging hypotheses;
  4. Technical skills & background knowledge: you need us to warn and guide you about everything that may be relevant from the approaching nin-month tax trap or pension impacts of child benefit claims but also to be knowledgeable about child development. You will want us to be able to develop options from what has worked well in the past;
  5. Connection: you will want us to proffer other services and experts where needed and to have communication with your lawyers where you ask;
  6. Commitment & service: you rightly expect availability, high standards of attention, and follow up; and
  7. Clear charging: you will want to know what will be due and when.

Let us know, should we get started?

First calls are without obligation, but consider instead sharing this page with your partner to see if together this is a choice that you both want to adopt.

For more information on family mediation and whether is it appropriate for you, visit our dedicated mediation page via the button below or alternatively, please contact our mediation co-ordinator, Wendy Hoare, for further details E: wh@flip.co.uk or T: 020 7420 5000