When divorcing, people will often hear about mediation and will be advised to attend it to try and resolve disputes (whether for issues concerning the children or division of the marital finances).
What is mediation? Mediation is a form of what is called “Alternate Dispute Resolution” (ADR). It is aimed to help individuals resolve matters amicably, out of court. A mediator is an impartial person who is trained to help divorcing couples explore their issues; the mediator will assist the parties with communication and reaching an agreement over the specific issue in dispute. It can be an effective way to resolve issues and keep lines of communication open, so it is usually recommended where it is appropriate.
However, no one can and should be actively forced to mediate. If that were the basis of mediation in every scenario it wouldn’t be successful (as the intention of mediation is that it is a collaborative and non-acrimonious way to discuss issues and resolve disputes).
There are some circumstances though where procedurally mediation needs to have been considered and a decision made as to whether it is appropriate or not on the individual circumstances of the case.
For the purposes of actually starting the divorce process (ie preparing a Divorce Application itself) there is no requirement to attend mediation at all.
However, when individuals need to make an application to court in respect of the finances, the person bringing an application needs to discuss with a mediator whether mediation is appropriate for their case. Individuals bringing such an application need to attend a “Mediation Information and Assessment Meeting” (MIAM) to discuss with a mediator whether mediation is appropriate in the circumstances and whether the other party should be invited to a mediation session. The court, will, however want to know it has been considered as an option.
There are of course some cases where mediation would not be an appropriate way of resolving a dispute (and in those circumstances attendance at a MIAM may not even be required),
This is the case when:
- There has been domestic violence (as this would mean that a person would have to actively mediate with their perpetrator which would be inappropriate and could put an individual at risk).
- There is some exceptional urgency, for example if there are urgent issues which need to be determined (for example if assets need to be frozen and to attend mediation would give that person a “heads up” as to an urgent application being made).
- There are already ongoing court proceedings.
- Mediation has already been attempted in recent months and has broken down.
In summary, mediation can be an extremely effective tool and the advice would always be to use it as an amicable way to resolve a dispute in the first instance (unless of course there are reasons as to why it is not appropriate).
