What do you say in child custody mediation? – 2021

September 28, 2021

Why choose us?

Aspire Family Mediation offers family mediation across the UK. We are members of The Family Mediators Association (FMA) All our mediators are recognised or working towards accreditation.

We also have actually specialist mediators who are certified in child inclusive mediation to work directly with children and bring them into the mediation process. We offer mediation across in Hemel Hempstead, Watford, St. Albans, Harpenden and near Banbury however our consultations are all by Zoom.

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WILL IT LOOK BAD IF I REFUSE TO GO TO MEDIATION?

Mediation is always a voluntary process, although the courts can and will take a look at the conduct of both parties prior to and during the court process. A fundamental part of this conduct is showing that you have acted reasonably and tried alternate kinds of conflict resolution, such as family mediation and followed court procedures.

Declining mediation without reason however may be taken into consideration when taking a look at the awarding of costs and, for financial conflicts, in the division of properties.

BACKGROUND

Since April 2014 it has been a legal requirement to go to a MIAM (Mediation Information Assessment Meeting) to help you think about the benefits of family mediation prior to you can send an application to the court for child arrangements or monetary orders

There reasons for this included, however were not restricted to:

The courts were becoming overwhelmed with cases
Many of the cases could, and most likely should, have been fixed without the need to go to court
Court is not always the best place to deal with concerns regarding a family matter
The government, and most legal professionals agree that family mediation is a better method to fix issues on a divorce or separation, or a disagreement on child arrangements.

DO I HAVE TO GO TO MEDIATION?

In order to send an application to the court you must show that you have at least thought about family mediation, by way of going to a Mediation Information Assessment Meeting – called a MIAM. A MIAM is the first meeting when a family mediator will describe how mediation works, evaluate whether it is suitable for your case and answer any issues or concerns you may have about mediation. You can read our guide to a MIAM here.

Sometimes you might be exempt from attending a MIAM, for instance if you have been a victim of domestic abuse and have the relevant proof, or if a child is at imminent danger.

I HAVE RECEIVED COURT PAPERS BUT I WAS NOT INVITED TO GO TO MEDIATION– WHY IS THAT?

This may be due to the fact that the other party either satisfies one of the MIAM exemptions or because they have gone to a MIAM and either the certified family mediator or other party have decided that family mediation is not suitable
If you have received documents from the court for financial or child plans, it is very important you respond to them and participate in courts processes, otherwise a decision could be made in your absence, which would be legally binding. You should take independent legal guidance where possible.

WHAT IF THE JUDGE THINKS ABOUT THE CASE APPROPRIATES FOR MEDIATION?

If the judge believes it would be much better for you both to try to reach an agreement through mediation, then the judge can direct the case is adjourned a few months whilst you both attempt and fix the matters through mediation. This direction can be at any stage of the procedures– often the judge might offer an indication of what they would buy and after that ask you to mediate out the specific details between you.

If you are directed to attempt mediation by a judge, you still do not have to do it– one of the five pillars of family mediation is that it is always voluntary– however the judge would need to know why you have not done as they recommended and your conduct might be considered when it concerns granting expenses and in the last judgement

CAN MY SOLICITOR CHOOSE MEDIATION IS NOT SUITABLE?

No, only a recognised family mediator can decide if mediation is not appropriate for your case. Once they have made such a decision, mediation ought to not happen, unless the situations have changed since that choice was made. In such cases, you may want to go to a brand-new MIAM to see if mediation is now suitable.

Your mediator can advise whether they think one of the 15 exemptions to mediation need to apply to your situation.

I HAVE BEEN INVITED TO MEDIATION– DO I NEED TO RESPOND?

Yes, you should always respond to the mediation or the mediation service who contacts you. The mediator will constantly be neutral and it does not matter who has been seen by them. The mediator will typically want to see each of you on your own before any joint mediation sessions can take place.

If you don’t decline or respond mediation without a good reason, you will generally have to describe why you declined mediation to the judge, if your case subsequently goes to court.

WHAT COULD BE CONSIDERED AN ISSUE IN THE MEDIATION PROCESS?

Not responding to an invite to mediation.
Receiving an invite and rejecting it had been gotten.
Booking in consultations and then continuously cancelling them.
Demanding a consultation at the weekend or at a date months in the future.
Firmly insisting that your lawyer or another individual is present at the mediation (you can have somebody in support for your MIAM).
Decreasing mediation as you refuse to move from your position.
Declining mediation as you believe the other party won’t move from their position.
Thinking you are 100% right and your case is watertight.
Not mediating as you really dislike the other party.
You don’t want to remain in the same room as the other individual (you can do shuttle and online mediation).
Decreasing mediation as you can not get childcare organised (you would have to get childcare arranged to go to court).
Stating conditions on the mediation taking place. ie only mediating if the other party will agree to something ahead of time.

The message from the family courts is that mediation ought to be tried and entered into in good faith, unless an accredited household arbitrator thinks it is not suitable or one of the 15 exemptions uses.

THERE HAS BEEN DOMESTIC ABUSE IN OUR RELATIONSHIP, DOES THIS MEAN I DO NOT NEED TO MEDIATE?

One of the exemptions to attending a MIAM is if there has been domestic abuse against you in your relationship. Such abuse might be physical, verbal or psychological. You have to offer proof of this exemption, which might be an authorities recommendation number, domestic abuse charity letter or note from a physician or other health expert. The full details of evidence needed are explained on the relevant court forms, either for a financial order or C100 for child plans. You might also complete a C1A which will detail any incidents of domestic abuse and is sent to court along with the relevant application.

If you do not have evidence, you will need to discuss your scenario with your mediator at a MIAM (Mediation Information Assessment Meeting. It may be that they decide that mediation is not suitable and sign the court type accordingly.

MY EX WON’T MOVE ON THEIR POSITION SO WHAT IS THE POINT OF MEDIATION?

90% of Aspire Family Mediation’s customers reach an agreement when they go on to joint mediation. The nationwide average is 74% resolution– many more people reach an agreement through mediation than don’t. Your ex’s position may be entrenched prior to mediation, but the mediation process assists you to explore options and reach agreements, even from positions that were formerly far apart or seemingly immovable.

I DON’T WISH TO MEDIATE AS I DON’T TRUST THE OTHER PARTY TO MAKE A FULL FINANCIAL DISCLOSURE.

Purposeful dishonesty on this kind can be thought about fraud under the Scams Act 2006 and would possibly put you in contempt of court. It is likewise likely that you would be punished by the court for irritating the procedure, were you dishonest in your disclosure.

MY EX AND I SIMPLY ARGUE WHENEVER WE DISCUSS MATTERS, SO THERE IS NO POINT IN MEDIATION.

The mediator will assist you both have your say and make your points, whilst helping you concentrate on the issues to be resolved. Mediation is not about going over the relationship, going over concerns in the past or apportioning blame. It is about helping you agree the parenting or monetary arrangements of your divorce or separation as relatively, agreeably and cost-effectively as possible.

I CAN NOT AFFORD MEDIATION, WILL THIS LOOK BAD ON ME?

Mediation in the UK costs an average of £140 per hour for each party (plus VAT) but this can vary.

If you can not afford mediation you may be eligible for Legal Aid or the Family Mediation Voucher Scheme. Speak to the team to find out more.

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