Mediation – When it isn’t working

Q: My friend has said that when he had mediation it seemed like the mediator was on his ex-partner’s side and that he was being ganged up on. Why should I bother trying it? 

 A qualified mediator (ensure that the mediator is accredited by the Family Mediation Council – check the credentials) is impartial and does not take sides. This is one of the basic principles of mediation. If at any point of the mediation you feel like there might be a power imbalance or that the mediator is taking sides, you can ask to speak to the mediator separately to discuss this (a mediator will then give each party equal time in a separate capacity to address this, so as to ensure impartiality). 

Q: I found mediation to be a complete and utter waste of time. The mediators were rude and quick to disregard anything I said. I felt as if I wasn’t being listened to. Why should I consider it again?

You will always have the choice to continue mediation or not. The same goes for your mediator. If you are unhappy with the service being provided, you can go through their complaints procedure and maybe ask the mediation service for another mediator or visit the National Family Mediation website to find another mediation service which might be in your vicinity. It is also wise to do your homework before embarking on using a mediation service. Check out their credentials i.e. are they a member of the Family Mediation Council (FMC), does the mediation service use FMC accredited mediators, have they had adequate training etc.? The cost of one mediation service might differ considerably to another. It is important that you feel you are receiving a professional and impartial service. 

Q: I am taking my ex to court for parental responsibility and child arrangements order. Most people on the forum suggest going to mediation before court. But how will mediation help when my partner is refusing to give me parental responsibility? Nobody is going to convince my partner to give me parental responsibility so I don’t see how it could work. Also we are not in disagreement about the level of time I spend with my child, but verbal agreements have broken down before and I want added security.

Any court and judge will have expected you to at least have tried mediation to resolve your dispute out of court before attempting to venture down the court route. Under what we call the pre-application protocol, an applicant to court will be required to attend a mediation information and assessment meeting (MIAM). This gives you the opportunity for you to meet with a mediator, hear more about the mediation process, and have the opportunity to discuss your situation to find out whether mediation would be an option for you. It is at this meeting that you will have the opportunity to decide whether you would like to go ahead with mediation. The mediator will also have the opportunity to assess whether mediation is appropriate in your situation. The other parent will also be invited to come along to an introductory meeting. It is compulsory for them to attend this meeting too. If either of you or the mediator decides that mediation will not be appropriate after this, the mediator will provide you with a form which says you have attended a MIAM and will allow you to proceed down the court route.

It seems that in this case, it might be helpful for you and the other parent to discuss mediation as an option to formalise the verbal agreements made about child arrangements. It is always helpful to have any arrangements recorded. An Outcome Summary written by the mediator, can be turned into a consent order or in this case a ‘Contact Order’ by a solicitor and approved by the Judge to make it legally binding.  This is more cost-effective because you are only using a solicitor for a small part of the process.

The government is also funding the drafting of consent orders through the ‘legal help for mediation’ scheme. Your Solicitor can access this by asking your mediator for a CW5 form. It is well evidenced that mediated outcomes are cheaper, quicker and longer lasting, especially when it comes to arrangements for the children.

Q: Had mediation last week which resulted in no progress whatsoever. My partner dodges questions or doesn’t answer them. The mediators have congratulated us on our perseverance, which is a joke, as it’s got nowhere at all due to my partner, who says one thing and does another…………Have found mediation to be a waste of time – What can I do to make this work?

Mediation is a voluntary process which means that both parties have to take responsibility to engage in the process. The mediator also is not able to tell parties to mediation what to do or how to engage as this will jeopardise their impartiality.

Unfortunately there does come a point where if mediate does not reach its ultimate objective in facilitating for parties to come to a satisfactory and acceptable agreement about some or all of the issues in dispute, then you might want to consider other options, like solicitor negotiation, collaborative law or court. However, these can be quite expensive and lengthy processes.

If you are due to attend another mediation session, it might be wise to state exactly how you feel so that it can be openly discussed. It may be the mediator can get to the bottom of why your ex-partner is not taking part. Our experience tells us that when real concerns are addressed, people will put a lot more effort into making an agreement work and sticking to it. 

Q: My other half recently attended a MIAM to attempt to get mediation started after the ex-partner stopped contact (he’s not seen his kids for 7 weeks after usually seeing them twice every week for 8 years). The mediators have sent letters requesting the ex-partner to attend but the ex-partner has so far refused. What do we do now?

If the ex-partner has refused to attend mediation then it is unlikely that mediation will proceed. You partner might decide to try solicitor negotiations instead or apply to court for a Child Arrangements Order.

However, if a decision is made to go to court, your partner will be able to ask the mediator for an FM1 form which will allow an application to court for a Child Arrangements Order to spend time with his child. The court only usually considers an application to court once they know that the applicant has attended a Mediation Information and Assessment Meeting (MIAM) or introductory meeting to mediation, and has considered mediation as an option.

Once they are engaged in the court process, a judge can then decide to order both parents to attend a MIAM (under an order which is known as a contact activity). The court might also decide to direct both parents to the Separated Parents Information Programme (under an order known as a contact activity) which is a 4 hour course designed to assist parents to better co-parent following separation by focusing on the needs of their children. Mediation is discussed as part of this course.

Because your partner has already attended a MIAM, it might not be necessary to do this again, but it is likely that the other parent will have to. Once both of them have had the opportunity to attend a MIAM, both of them and the mediator will decide whether mediation is appropriate. It is, however, advisable that they try to resolve this dispute out of court, as it can be an expensive (both emotionally and financially), adversarial and lengthy process.

National Family Mediation

Please note that this Q&A provided by DAD.info in partnership with National Family Mediation contains general information about sorting out your separation. The information is not advice and should not be treated as such. You acknowledge that, because of the limited nature of such communication, any legal assistance you may receive using any such facility is likely to be incomplete. Any legal assistance or information you may receive using any such facility does not constitute legal advice and accordingly should not be relied upon

National Family Mediation is the largest provider of family mediation in the UK. We deliver family mediation and support services across 500 locations. Our professionally trained mediators, experts in conflict resolution and family law, assist families affected by breakdown and specifically, couples affected by divorce / separation to make joint decisions about their finance, property and long-term solutions for their children.

We recognise that you want to focus on your children but this may be a challenge with all the other responsibilities that come with separation. Mediation encourages parents affected by separation to collaborate (where appropriate), as it highlights the benefits to children when parents work together, which include;

• Children do best when parents work together, they’ll be healthier, happier and do better in school with two parents supporting them throughout their childhood
• Your children want to know they matter to both of you, so it’s better when you both collaborate to make things better for them

Family mediation is also cost-effective, quicker, provides for longer-term resolution and has better evidence-based outcomes than the often costly (emotionally and financially) stressful court route. 

About the author

Clare Kirby qualified as a lawyer in 1983 and worked for several years in industry. She founded Kirby & Co in 1997. As a member of Resolution and an advanced member of the Law Society’s Family Law Panel she is experienced and respected in the field of family law. Trained as a collaborative lawyer, Clare offers clients a range of options – traditional, and collaborative law – to best meet the needs of the individual clients.

Updated: February 2018