Choose well: Choose mediation?

Family Mediation Week | Sonia Rola, Buckles Solicitors LLP, looks at the benefits of mediation

I am a family law solicitor and an accredited family law mediator and have worked within the legal profession for over 20 years, with extensive experience in family law and am a member of Resolution.

The week commencing 16^th January 2023 is family mediation week. This is an opportunity to raise awareness of family mediation and of the benefits it can bring to separating couples. Its aim is to let people know about the benefits of family mediation and encourage separating couples to think about family mediation as a way of helping them take control, make decisions together, and build a positive future for their family.

Unless there is a safeguarding issue, namely unless you’re at a risk of life or limb, now more than ever individuals should consider “almost anything but the family courts”, especially when it comes to children law applications.

A children law application will inevitably cause further delay and cost. In a recent poll by Resolution, over half of the family lawyers surveyed said it now takes an average of one-to-two years to resolve family disputes after making an initial children law court application. That time delay could lead to serious consequences to the overall outcome of a court’s decision, especially due to the status quo that may have been developed in the meantime whilst a parent waited for a final hearing.

According to HMCTS, as of September, the backlog is sitting at 110,425 cases – a 2% month-on-month increase. This is also a striking increase of 6.4% from the figure of 103,790 seen in September of last year.

When parents embark on the unchartered waters that are contested children law applications, this may further damage what is probably an already hostile environment between a separating family.

Whilst parents fight it out during the court process, i.e. by asking stranger(s) to decide on their private family life instead of making their own decision(s) in their own family life, parents may also risk losing or indeed lose the possibility of there being any future positive communication with one another – at least in the short term – which will inevitably trickle down and affect the child and cause further unnecessary stress and/or anxiety to all concerned. No child is built for conflict. Further, soon enough the family courts will open its doors to the public. Conflict is often a destruction thing, so what is the answer to separating families?

Mediation is still a very underused tool, and which could nevertheless provide a parent a lifeline and a much-needed opportunity for them to be the best parent that they could be, in a supported space. There are a range of boundless possibilities within family mediation in its very flexible and fluid forum. Parents can discuss openly together in private their child’s specific needs and what’s going to or not going to work for them, issues that the courts may not necessarily ask and/or cover or indeed even be interested in.

Family mediation can often help parents work on their communication; essentially family mediation could give parents the opportunity for them to be parents. This is a far more authentic way of parenting, being given the opportunity of a supported conversation in a safe space in private.

It is far more likely that during the process of family mediation both parents will be given an opportunity to consider and discuss how the child feels about their outcome, as well as this being cheaper and quicker method to resolve the child arrangements. It could also provide parents very much helpful signposting.

If a layer of complexity exists, there is also a possibility to co-mediate with another mediator, for example if there are different jurisdictions or laws to consider. Parents could also agree that it covers different jurisdictions, without the added expense of applying for mirror orders within different jurisdictions and therefore avoid even any further unnecessary cost and/or delay.

However, there are also some drawbacks to mediation. It’s not legally binding and private so discussions which are had at mediation cannot be used in open correspondence/proceedings at a later stage. If parties change their mind, they will need to start the process all over again and go to court, but in fairness this would be the same outcome if parties wish to vary an existing court order(s).

It is also possible to mediate online, so location is no longer a factor as it used to be, which is especially handy for those clients who live far away or abroad. This could also save time and travel (and cost) to all concerned.

Parents could agree on a parenting plan to use as a template between themselves and then continue to modify this, catering to the child’s specific needs as the child grows up. In short, it is far more likely that family mediation will help towards a child enjoying his or her loving connection with both parents and homes instead of him/her just living in two houses.

So, parents, choose a better way: right method, right place, right time; choose mediation?