How can a mediator assist you through the process of divorce?
A mediator’s role is to assist both you and your former partner in considering ways of resolving issues that you may have in regard to future arrangements for yourselves and any children.
The mediator will help you both to explore the options you may have, with a view to reaching an outcome that you both consider will work. That might not be the same as a solution arrived at by a Court.
They can also advise if they think your proposals might fall outside of what a Court might approve or order and can give you information about what courses of action are open to you to seek individual advice.
The choices and decisions are yours.
- The mediator will not tell you what you should do or comment about what your individual ‘best interests’ are or might be. It is possible and often very helpful for you to have advice from a solicitor during the course of your mediation so that you are able to make informed decisions and so that each of your solicitors (if you have them) is aware of how the mediation is progressing.
- The mediator will help you to consider when legal advice would be helpful. Sometimes, it may be helpful for your solicitors to be present for some or all of the mediation meetings to participate in the mediation process in any useful and appropriate way.
The mediator will provide you with legal and other information
- The mediator will provide you with information on an even-handed and general basis to assist you both in working towards your own decisions and particularly to assist you in how the general principles of the law may affect anything you are planning or proposing to do as a result of your discussions together, including how the Courts consider what would be within a reasonable range for any outcome/settlement.
- The mediator will not provide you with legal advice (or representation), however, they will talk with each and both of you about when it would or might be helpful to have legal (or other) advice to help you.
- The mediator may assist you to consider whether it would be helpful to have assistance from other professionals such as accountants, financial advisers, expert valuers or others, or from family consultants, counsellors or therapists either in or alongside the mediation process.
A media will not act if there is a conflict of interest
- The mediator will ensure that they do not have any prior knowledge of either of you or your situation through a previous professional involvement of any kind. This is to ensure that you can be confident they are working independently and impartially.
- The mediator will not continue to act if there is any other conflict, potential conflict or perceived conflict of interest or a conflict emerges and will discuss with you what your alternative or next steps might be.
Confidentiality and privilege
- The mediator will treat all matters in the mediation as confidential, except as otherwise agreed, and subject to the terms of the mediation agreement. Information provided by either of you will be shared in the mediation. However, if you wish to keep an address or contact details confidential you may do so by letting the mediator know.
Either of you may end the mediation at any stage
- The mediator may also end the mediation if they do not think it appropriate or helpful to continue. In either such event, the mediator will provide information as to the other options available to you.
Mediation is a voluntary choice
- It is important that each of you enters the mediation process able to discuss matters freely and without risk of threat or harm. You can always let the mediator know if there are any concerns for you about your ability to discuss matters in front of the other person.
Financial disclosure with divorce
- Where and when appropriate, you both agree to provide complete and accurate disclosure of all your financial circumstances, with supporting documents where necessary the mediator will try to help you to identify what information and documents will help you to be clear about your financial situation, and to consider how best these may be obtained.
- The mediator does not check or confirm the completeness and accuracy of the information you provide but can help you to consider the ways in which you may do so.
- The mediator will ask you to sign and date a statement in an Open Financial Statement confirming that you have made a full disclosure. It is important for you to know that you each have a duty to make full and accurate disclosure of your finances if you are going to be able to make decisions that can be endorsed by the Court by way of a Consent Order.
- It is important that you know that if it should emerge later that full disclosure has not been made, any decisions or agreements flowing from the proposals reached in mediation could in some cases be set aside and the issues re-opened.
‘Open Proposals’ with finances during mediation
- It is important to know that all your financial information is provided on an “open” basis, which means that it can be used in Court. This may be in support of a Consent application made by either of you or in contested proceedings. Completing your financial disclosure will assist you and your individual legal adviser and will avoid information having to be provided twice over.
- The information can be ‘portable’ for you and you will be able to use it with your solicitor, independent financial adviser or any other professional who you may choose to assist you with your finances. This is important as your individual legal or financial adviser will need to see your disclosed finances before they can advise you on any proposals you have reached or are considering.
‘Without Prejudice’ proposals regarding finances etc
- Conversations, any communication and information about possible options, proposals and the terms of any financial settlement are on a “without prejudice” basis, which means they cannot be referred to in Court (except by order of the Court or where the law imposes an overriding obligation of disclosure on a mediator). Also, an ‘evidential privilege’ will ordinarily apply for all attempts to resolve issues in the mediation.
- This allows you both to be able to share ideas and proposals that you may have thought about as possible options for resolving things without having to be concerned that that information might latterly be used against you in any way. It also means that it is only if both of you agree to waive that privilege that you might do so and allow a court to know any details of your possible options, proposals and terms of financial settlement discussed in the mediation.
Professional advice and outcomes
- Any significant decisions arrived at in mediation (including any proposals you make together) will not usually be turned into a binding agreement (usually a Consent Order) until you have each had the opportunity to seek advice on them from your solicitors which the mediator will encourage you to do.
- It is important to have independent advice to assess how your joint proposals may affect your own individual position.
- During the course of the mediation, the mediator can draw up an Interim Summary or Outcome Statement on a ‘without prejudice’ and confidential basis to record interim decisions or minor matters or options/ proposals discussed, however, such a document would be privileged and could not be produced in evidence to a Court, (except if a Court Order and/or the law impose an overriding obligation of disclosure).
Summaries and recording of your outcome proposals
If you are discussing future financial arrangements between you as part of your mediation, during the course of the mediation and once financial disclosure is complete, the mediator will ordinarily draw up:-
- An Open Financial Statement/Summary of your financial circumstances which will be on the record (and could be used in evidence in a Court if need be).
At the end of the mediation (or earlier if appropriate), the mediator will also draw up:
- A privileged summary called a Memorandum of Understanding of your proposals discussed and decided in the mediation, outlining the context in which those proposals have been reached. This is a ‘without prejudice’ documents.
Legal Advice
Your solicitors (if you have them), will usually undertake the formal recording of any agreements that may be reached after you have each been able to seek their advice, including for example the drawing up of any Separation Agreement or draft Court Consent Order. If you do not have a solicitor, the mediator can provide information about specialist Family solicitors, in the area who will be able to help you.
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