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A survival guide to using Family Mediation after a break up

This guide is for you if you have recently split up or are struggling to agree with your ex-partner (or another family member) about what’s going to happen to your home, money, children or any other issues. It doesn’t matter if you were married, in a civil partnership, living together, or never did any of these things. This guide explains what family mediation is and how it could help you. Before you can take a family issue to court, most people have to show that they have thought about using mediation. We explain what that is all about, who has to do it, how you do it, and what your other options are.
Using Family Mediation after a break up
Using Family Mediation after a break up
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Introduction

This guide is for you if you have recently split up or are struggling to agree with your ex-partner (or another family member) about what’s going to happen to your home, money, children or any other issues. It doesn’t matter if you were married, in a civil partnership, living together, or never did any of these things.

Family mediation is not about getting back together. In fact it is the opposite, family mediation aims to help you to agree how you will live apart.

This guide explains what family mediation is and how it could help you. Before you can take a family issue to court, most people have to show that they have thought about using mediation.

May 2015

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Disclaimer 

The information in this guide applies to England and Wales and is for general purposes only. The law may be different if you live in Scotland or Northern Ireland.

The law is complicated. We have simplified things in the guide to give you an idea of how the law applies to you if you are a young worker. Please don't rely on this guide as a complete statement of the law or as a substitute for getting legal advice about what to do in the specific circumstances of your case.

The quotes and cases we refer to are not always real but show a typical situation. We hope they help you think about how to deal with your own situation.

Acknowledgements 

Advicenow would like to thank all those who provided feedback on this guide and took part in the pilot.

What is family mediation?

Agreeing arrangements for the children or how you will divide money or property if your relationship has ended can be very hard. Sometimes, it is just too hard to do by yourselves. Feelings can get in the way and discussions about practical things get lost in the hurt and anger. And when you do manage to discuss them, most people are feeling less reasonable and less fair than usual. It is for all of these reasons that many people find it useful to get some help.

One option is to meet together with your ex and a mediator, who has been properly trained to help you put your feelings aside and focus on the practical issues that need to be sorted out. This is called mediation. The mediator won’t take sides or decide what is fair for you - they are simply there to help your discussions. Mediators don’t give you legal advice, so it is usually wise to see a solicitor too.

You can use family mediation straight away after deciding to end your relationship or later if you are still having problems.

Other people choose to get a family solicitor to negotiate with their ex for them. Some people can’t agree even with help and take the issue to court so that the court can decide.

Do I have to use mediation?

Nobody has to use mediation. But if you want to go to court over a family problem (like how to divide money or property after splitting up or where the children should live, for example) you have to show the court that you have met with a mediator first and considered mediation. This is because the government thinks it is usually better that you decide these things between yourselves if you can, rather than the court telling everyone what to do. This first meeting is usually called a Mediation Information and Assessment Meeting (or MIAM).

Who doesn’t have to go to a meeting about mediation?

Sometimes you can go to court without having had a meeting with a mediator first. You don’t need to if:

• You’ve contacted three mediators within 15 miles of your home and are unable to get an appointment with any of them within 15 working days.

• The mediator says on the form (FM1) that mediation won’t work because one of you didn’t attend the meeting.

• A mediator has said that they don’t think your case is suitable for mediation in the past four months.

• There has been domestic violence between you within the past year and police investigations or civil proceedings were started. (If you didn’t report it, you still need to speak to a mediator but can explain you don’t want to use mediation because there has been violence between you).

• Your problem is about money and one or both of you is bankrupt.

• You don’t know where your ex is.

• You want to apply for a court order but for particular reasons don’t want to give your ex any notice.

• The court application is urgent because someone is in danger.

• The issue is about a child who is already involved with social services because of concerns over their protection.

 

How the information and assessment meetings work

You can go to this meeting either on your own or with your ex. The mediator will approach your ex for you to see if they might be willing to try mediation.

I didn’t want to go....

"I thought it was pointless. And I was angry that there was another hurdle I had to jump when I was already feeling overwhelmed. And I had to pay for it! I had it in my head that we had to go to court and fight it out. To my surprise my ex was a bit keen. She was taken with the idea that we might get everything sorted out in a couple of months. To be honest that made me even more convinced I didn't want to do it. I didn't see why I should make things easy for her. But we have two kids. It was hard to argue that it wouldn't be better for them if it were all done quickly. I agreed to go to the meeting - still thinking it was a waste of time. But by the end of the first session I could see how it would work. It felt like the right thing for us. And it helped us start talking again which has made things easier for the kids."

Tim

At this meeting you can discuss what the issues are and work out whether mediation might work for you. If either you or your partner don’t want to use mediation or if there is another reason it won’t work for you, then the mediator will fill out the form you need to have to go to court.

This meeting isn’t free. It usually costs around £60 - £90 each. This sometimes includes the fee for completing the form for court, but sometimes not. Phone around and compare prices. See 'How to find a good mediator and solicitor'.

You may be able to get this meeting (and any further mediation) for free if you can get Legal Aid (see 'How much will it all cost?' ). Even if only one person is eligible for Legal Aid, the information and assessment meeting will be free to both of you.

Make the most out of your meeting

If you go for an information meeting, get the most out of it. By the end of your mediation information meeting make sure you have discussed

• what problems you need to solve,
• whether you'll feel safe and comfortable discussing them face-to-face,
• whether mediation is likely to help, and if so how many sessions it is likely to take,
• how much those sessions will cost, and
• how you will pay for them.

If mediation isn’t right for you and you think you will need to go to court then you need to get form FM1 completed and keep it safe.

How much will it all cost?

If you can’t get Legal Aid (and few people do now) it can be hard to work out how much it’s all going to cost at the start. The total cost depends on how many things you need to agree on, how complicated they are, how long it takes to reach an agreement, which service you use, and how much you earn. Most people need between 2-4 sessions, each lasting up to one and a half hours. Prices start at around £80 each for each session. Some mediators charge people according to their income, so if you are on a low income you may pay about £80 and if you are on a high income you could pay more.

Remember that most people need to pay for a little legal advice too you should budget at least an extra £200 for that, and a further £200 to get any agreement about finances made into a court order.

When you are looking for a mediator or a solicitor, don’t be afraid to phone around and compare prices.

If you can get legal aid, the mediation and the information and assessment meeting is free. You can also get a small amount of free legal advice alongside it (the government will pay for £150 worth), and get the agreement you make about your finances made into a legally binding document for free too. To get Legal Aid though you need to be on a low income, have few savings, and meet other criteria, for example if you can provide particular evidence of domestic violence within the last two years. The mediator will work out if you are entitled to Legal Aid at the first meeting, or you can check by using the legal aid calculator (see Check if you can get legal aid)

 

What happens after the first meeting?

If you’ve decided mediation is not for you, you can ask a solicitor to negotiate for you. (You’ll need the form from the mediator if you end up going to court).

If you have decided, mediation might be really helpful for you, you can organise the next sessions.

The mediator will help you both (separately or together) to go through all your issues, think of your options, decide whether they would work well in practice and come to an agreement about what's best. The mediator is there to make sure that both of you get a chance to put your side of the story, particularly if one of you is better at arguing than the other.

In between sessions it is a very good idea to get advice from a solicitor to check that what you are agreeing to is fair for you. If you don’t get legal aid, some solicitors now offer advice for a fixed price.

If you are dealing with decisions about money, the mediator will ask both of you to produce documents to prove the details of your finances. Sometimes you do this by being asked to fill out forms giving all the details.

At the end of the sessions, the mediator will write down what it is that you have agreed. If you’ve managed to agree some issues but not others, the mediator will record what has been agreed and what still needs to be sorted out. This should help you cut your legal costs if you need to use a solicitor to sort out the final things.

If you are getting divorced, the mediator’s record of what you have agreed can be used in your divorce. If you are not getting a divorce, you could ask a solicitor to write it up as a legal agreement. Then you ask the court to have the agreement made into a court order, which is binding like any other court order.

How to find a good mediator and solicitor

How to find a good family mediator

Ask friends and family for a recommendation or your solicitor if you have one. Or use  Find your local mediator.

Not all mediators are licensed or have a qualification and some may have only have attended an 8 day training course. There is no one organisation that regulates them. But all the mediators included on the search tool (above) have been trained and accredited by providers approved by the Family Mediation Council. The results tell you which family mediation organisations they are members of (and therefore meet the standards of). Mediators who do Legal Aid funded mediation have completed further training that can last around two years – you can search for them by ticking the bottom box on the search tool.

Mediators are trained to give legal information but not legal advice. Some people feel safer with a mediator who is also a qualified solicitor. They can’t give you legal advice but they are obliged to tell you if you are about to make an agreement that is very different to what a court would order. (If you want to do it anyway, you can.) If you want a mediator who is also a solicitor, use the search on Resolution’s site. In the results it specifies how long the mediator has been a family law solicitor. See Find a Resolution member (for family law)

Don’t be afraid to phone around and compare prices. You need to ask how much the Information and Assessment meeting is, how much each mediation session will cost each of you, and if there are any other additional fees (for example, is there a separate cost for filling in your form if you decide not to use mediation). Also check how busy they are – are they likely to be able to see you at a time that both you and your ex can do?

How to find a good family solicitor

You can find a good family solicitor near you who believes in a constructive, non-confrontational approach on Resolution’s website (see  Find a Resolution member (for family law)).

It’s ok to phone around and compare prices. Some will offer help for a fixed fee, others may offer a first meeting for free.

 

If there has been domestic violence in your relationship

You need to think carefully whether mediation is really for you. If you are thinking about it, contact a mediator with the right experience. You can use the family mediator search (see Find your local mediator) to look for family mediators who work with clients where domestic violence has been an issue.

When you first meet with the mediator they will explain how they can help you to feel safe – this might be you and your ex using separate waiting rooms, arriving and leaving at different times, having separate meetings, or meetings where you and your ex are in different rooms and the mediator goes from one to the other.

Mediators are trained to help you decide if mediation is right for you. For mediation to go ahead you, your ex and the mediator all need to agree that you can discuss your concerns without fear.

If everyone decides to go ahead, the mediator will keep this in mind at every session.

If you decide that mediation is not right for you, you might find it more comfortable to get a solicitor to negotiate with your ex (or his/her solicitor) for you.

 

Common questions

I wouldn’t trust my ex to actually do what she’s agreed to do. Would I be better off sorting it out another way?

You can ask the court to make the agreements you arrived at during mediation (or those negotiated by solicitors) into a court order so that they are legally binding. Then they have the same weight as any other court order. Bear in mind this is likely to cost you approximately an extra £200 for the necessary solicitors and court fees.


However, if you think your ex will lie about their finances you might want to consider using a solicitor instead of mediation. Some people feel that it’s easier to hide the true financial picture in mediation than if a solicitor is more involved.

I like the idea of mediation, but I’m not sure I can face the idea of seeing my ex again and again.

Many people feel this, its completely normal. Having to see and speak to your ex is both a challenge and a very positive side-effect of mediation. Many people find it enables them to find a way to communicate with their ex again, which if you have children together can be a really good thing.

If you are dead set against it, some mediators can sometimes see you separately (although this can make for a longer and more difficult process). Your other option is to use a solicitor to negotiate on your behalf. This can still be relatively quick and avoids all the expense and stress of going to court. It can feel a lot safer to have an expert on your side, making your case for you. You can find  good family solicitors who believe in a constructive, non-confrontational approach on Find a Resolution member (for family law)

We need to sort out arrangements for our children who are now 12 and 15. Can/should they be involved in the mediation?

If you, the children and the mediator agree, children can speak to the mediator themselves. Some mediators are specially trained to talk to children. It can be helpful for them to be involved about the issues that effect them such as where they will live, which parent they live with, and how often they’ll see their other parent.

I don’t think we’re ever going to agree. Going straight to court just seems quicker and easier.


Sometimes people have the idea that going to court is what you should do. In practise very few cases end up in a court hearing, and for good reason. You have to wait quite a long time for court proceedings and (if you don’t get Legal Aid and few people do now) it costs a small fortune. For most people the choice is between using mediation and solicitor negotiation.

I’m worried about having to make my case myself. Can my solicitor come to the mediation sessions with me?

No. You can get advice from a solicitor between sessions to check that the agreements you are coming to are fair but they cannot come to the mediation session. However, there is another option – usually called ‘collaborative law’ – where you and your solicitor meet with your ex and his/her solicitor to come to an agreement. It sounds like that might be a better choice for you. You can find a collaborative lawyer on Resolution’s website. See Find a Resolution member (for family law).

Is mediation cheaper than using a solicitor to negotiate for me?

If you get legal aid it is definitely cheaper to use mediation than solicitors to negotiate for you. Legal aid for mediation (and for a small amount of legal help you have alongside it) does not need to be paid back. But legal aid to pay for a solicitor usually has to be.

For everyone else, it depends on whether you are able to come to an agreement or not, and if so how quickly. If you can’t come to an agreement or have only agreed on some things, you have to pay for the mediation (and any accompanying solicitors fees), and for whatever solicitors and court fees it takes to get the rest of the matter sorted.

My ex is very persuasive and charming. How can I be sure that the mediator won’t be biased?

Mediators are trained to be unbiased. They shouldn’t take sides or decide who they like best. But they do make sure both of you have the opportunity to say what you need to say and help you come to agreements. When you have the first meeting (MIAM) before you start mediation talk to the mediator about any concerns so that you can ensure you have complete confidence in their ability to remain impartial.

 

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