Mediation and Collaborative Family Law
Posted:9th February 2021
Out of Court Settlement Options in Family Law
Whilst both of these options are suitable for clients who have a wish to retain control over their discussions, dynamic and direction, there are both similarities and differences in the respective processes.
A Mediator is a neutral guide and facilitator who can provide a wealth of helpful and relevant legal information to clients within the mediation process. Whilst legal advisors can be part of a mediation either within the process itself, such as hybrid mediation, or as a corollary to the sessions, they are not leading the process. Other Professionals can also become involved to guide and assist the parties.
A Collaborative Family Lawyer is a specially trained lawyer who advises a client in the Collaborative Family Law (CFL) Process. There are always 2 of these lawyers, each advising one client but giving advice in a non-positional way so that the lawyers and the clients can work together as a cohesive team with the same forward looking goal. The meetings are called 4 Ways (if just 2 lawyers and 2 clients) or 5 or 6 Ways if they involve, as they often do, other Professionals. One of the Professionals will chair the meeting, often one of the lawyers and the other will produce Minutes.
- The parties will be assessed as to suitability. Mediation has a formal way of doing this namely by way of a MIAM or Mediation Information and Assessment Meeting which is an individual meeting between the mediator and each client. CFL does not have a formal assessment format but solicitors will assess for suitability either themselves, informally with their collaborative colleague or by having an initial meeting to see if the dynamic in the room looks likely to work as a collaborative case
- The parties have to sign up to a process. In Mediation it is an Agreement to Mediate and in CFL it is a Participation Agreement. Both documents set out the ground rules for each process to which both the Professional(s) and the clients must abide
- Both processes are very much room-based and discussion-based. There is little, if any, correspondence as all the work should be done in the room
- There is a cohesive and team based approach with everyone working on forward thinking solutions
- The people who work hardest should be the clients as they have to take responsibility to move matters forward to self-determination, which they can only do with the right support and guidance
- Other Professionals can become involved to assist the parties with issues that arise so as to ensure that as far as is possible issues are identified and resolved by an appropriate expert
- The discussions are confidential and without prejudice but the financial disclosure is open and able to be used in other processes.
- The main difference is the giving of advice in the room by the professional or professionals who is/are leading that process. A Mediator is unable to give legal advice. A mediator guides and the clients to navigate their way through the issues as they present themselves, and to facilitate discussions to enable the clients to look at the options available to help to resolve any problems that arise
- Clients will always be able to and indeed encouraged to seek legal advice both during and after the mediation process. Sometimes they are able to work together with their former partner with the mediator’s guidance, without the need for advice during the mediation
- In CFL the people involved are one team working cohesively together to resolve matters fairly. It is a transparent process where the advice that is given is ‘in the room’. This allows everyone to hear what is being said. It allows clients to see that lawyers can have different views on issues that arise, but that the important thing is that everyone is striving to do the best for the clients and work to a common goal of a fair settlement
- Mediator’s notes of the sessions are confidential to the mediator and do not form part of the mediation file.
So what about Agreements?
In mediation joint proposals are encompassed in a Memorandum of Understanding (MOU) and clients will be told by the mediator to take their mediated agreement to a solicitor to get advice. This will be the process by which the privileged and confidential discussions become open documents and able to be referred to by a court, whether by filing by consent or otherwise.
Otherwise mediation discussions and joint proposals remain confidential and unable to be referred to in court.
Discussions in CFL are also without prejudice and therefore if matters are unable to be settled within the CFL process clients have to change solicitors. Controversially, this underpins the success of the process as it ensures that the focus remains on resolving the issues and not walking away from difficult issues and discussions.
If an agreement is reached between the parties then this can be evidenced in open documentation. Usually this will simply be by filing a consent order at court or referring to agreed terms in an open set of correspondence between the collaborative lawyers.
So what is the right process?
The right process is the one that feels right when you have considered all your options. These processes are but 2 options in a Family Law setting.
Our Family Team at EMG consists of experienced Family Solicitors, Collaborative Family Lawyers and Family Mediators. Get in touch with them today for a free initial consultation on 0191 500 6989 or email us at [email protected]