What is Separating Couples Mediation?
Separating Couples Mediation (also called Family Law or Family Mediation) is where you retain control over your own decision-making processes in a private, confidential, and dignified context when you decide to separate or divorce – resulting in legally enforceable agreements for a fraction of the cost of legal fees.
As a famous person once said, “Discerning clients never allow these issues to be placed in front of a judge or handed to other ‘experts’ to decide the outcome for us”.
Separating Couples Mediation is a viable and effective alternative to spending several years, as well as many thousands of Euros in legal fees, perpetuating conflict; which creates distress for parents as well as children and young people whose parents are navigating a separation or divorce.
Navigating the adversarial process of the Family Law Courts for many years brings emotional, psychological, and financial devastation to parents and families, and in particular to children caught up in these lengthy adversarial processes because one/or both of their parents decide to separate/divorce in an unhealthy way.
Family Law Mediation as an alternative to the lengthy, costly, adversarial, and arbitrary court process that can last many years perpetuating conflict, adding to the emotional and psychological distress and potential harms to children as well as disempowering parents from making their own decisions about their own lives in a timely manner.
Couples will have navigated several adversities and made important decisions in their past that were a good fit for them, their families and children without having “experts” impose decisions on them that neither of them are happy with and/or do not reflect their individual circumstances, values and beliefs. So why would you hand over the power and control now to services, agencies and “experts” that are under-resourced and overwhelmed with workloads, where you become just another “file” or just another “case”?
With Family Law, couples who are separating and/or divorcing retain the decision-making and control of their lives at this difficult time in a process privileging the uniqueness of each family circumstance in a private, confidential, empowering and dignified manner that reflects the values and beliefs of each parent, and their hopes and dreams for their children’s welfare going forward despite the dissolution of the marriage or relationship.
A structured approach to mediation can create different types of agreements, depending on the particular circumstances. Examples include:
- Parenting Agreements
- Separation Agreements
- Deeds of Separation
- Consent Divorce
- Family Disputes
Where a relationship breaks down the Mediator, who is an impartial third party, meets with the two people (married, unmarried or in a civil partnership) who are considering separation or have separated, and wish to formalise their separation or divorce. They may also be parents who wish to agree structured parenting arrangements. The Mediator assists them to identify problems and explore possible solutions.
The Mediator’s role is to facilitate and encourage open communication and full disclosure between the couple, who participate voluntarily and in good faith, in an atmosphere of cooperation and responsibility, to reach an agreement that they both find acceptable.
The process encourages the couple to reach informed decisions about their children, finances, property, division of assets, and any other relevant issues and, where necessary, includes the assistance of accountants/tax advisors with the consent of the couple. Where parenting agreements are constructed, the Mediator encourages feedback from the children; preferably direct feedback, where the children are of an age to express an opinion, before the agreement is signed.
How does it work?
Usually the couple attend an initial consultation with the Mediator. During this consultation the nature and purpose of mediation is explained, informed consent is given by signing the Mediation Agreement, and the ground rules are set out.
The Mediator will then encourage each one to speak openly about their needs and requirements, with equal time given to both. It is important that the couple understand that mediation is not a counselling service, nor is the Mediator a substitute for independent legal advice. The main purpose is to reach a settlement by concentrating on the issues and to look for practical solutions, through structured negotiations. Mediation is an alternative to the adversarial litigation route which often incurs significant costs and can result in decisions being imposed upon the couple by the courts.
At the first consultation the Mediator will endeavour to identify all the relevant issues by investigating the perspective of both parties, and will encourage the couple to agree the elements that will form the basis of an agreement. During subsequent consultations, the Mediator will help the couple to explore options and alternatives and help them to negotiate and make decisions, which will then result in a draft agreement.
When the couple settle at mediation, their joint decisions will be recorded in a written agreement drafted by the Mediator and signed by both parties. This agreement is a formal contract and, like any contract, can be binding and enforceable. Therefore, it is recommended that the couple seek independent legal advice before signing. This is particularly important where the agreement is a formal Separation Agreement or a Formal Consent Divorce Agreement and may involve seeking legal advice earlier in the mediation process.
Where the couple have difficulty in coming up with options for any element of the process, the Mediator’s role can change to that of Conciliator, with the consent of the parties, and options can then be suggested by the Mediator.
Why attend private family mediation?
Private mediation has several advantages over the alternatives, such as litigation and the state-funded family mediation service.
District Court cases for access and maintenance may take many months and it may take 2 years or more for an actual hearing on the matters of Judicial Separation or Divorce. Usually when one parent is dissatisfied at that point, they may appeal a decision of the District Court to the Circuit Court. This results in several more years of legal costs and emotional turmoil, perpetuating the conflict and the harm to children and young people. However, generally a Mediator can see the couple much more quickly and the whole process is much shorter. Many divorce and separation cases reach a final settlement through mediation within 4 months from the date of client inquiry.
Private mediation is significantly cheaper than litigation. While the couple may need to pay other experts, such as solicitors, accountants and professional valuers to get legal and financial advice on the settlement terms under discussion, the total costs for many clients to conclude separation or divorce agreements with a Mediator are generally less than 20%, and often less than 15%, of the typical legal costs for equivalent litigation.
Legally enforceable outcomes
Unlike the mediated agreements from the state-funded family mediation service, private mediation clients can, and in practice almost always do, decide their agreements are legally-binding. This is permitted under Section 11 of the Mediation Act.
In general, clients who come to family mediation want to be taken step-by-step through a structured process by mediators who have significant knowledge of family law. Mediators help clients understand and manage the process, while making sure they get independent legal advice at the appropriate junctures. This is intended to produce legally-sound agreements from the mediation process, rather than reaching a non-binding memorandum of understanding (MoU) which needs to be redrafted, and often renegotiated, by clients’ legal advisors.
It is best that all financial documents used to vouch affidavits of means are exchanged between the parties and their solicitors. This information is exchanged outside of the mediation process to reduce the practice of mediation being used to mislead a party into agreeing to terms that are less than equitable.
Under the Mediation Act 2017, mediators can, with the permission of the couple, suggest options when the parties are finding it difficult to agree terms of compromise. Mediators cannot impose terms and they are merely talking points for further discussion and refinement. However, they are very useful in assisting clients to broaden their thinking beyond the classic win/lose arguments in litigation.
An aim of mediation is to improve communication and understanding between the parties even if they can’t reach terms of compromise. Mediation is a non-adversarial process and the couple are encouraged to be open and honest with each other regarding their reasons for proposing or rejecting options. Respect and fairness are emphasised, with each party safe in the knowledge that they can consider settlement terms in their own time, and that the content of their negotiations remains private and won’t be used against them in future litigation.
Where one or both parties feel uncomfortable, or even unsafe, to negotiate in the same room as each other, many mediators offer Shuttle or Separate Mediation in separate rooms or negotiations at different times and/or locations.
If you are committed to retaining control over your own decision-making process in a private, confidential and dignified manner while optimising the emotional, psychological and physical outcomes for your children across their lifespan, take the first step today and contact the Centre to schedule a consultation to see if Family Law Mediation is for you.
Our Family Law Mediator is Brian O’Sullivan.