• the process is entered into voluntarily and each person is able to speak on their own behalf and in their own interests

Mediation is a choice and clients must commit, by signing an Agreement to Mediate, to a shared goal of wanting to sort things out between themselves.  They must also confirm that they feel able to speak without risk or concern about the consequences of doing so.

Mediators explore with each prospective client at their confidential individual meetings (and on an ongoing basis), that these elements are met.  Despite what may be said, Mediators must satisfy themselves that these requirements exist/remain. 

If, throughout the process, these elements waver or fall away, the Mediator will take steps to explore whether such issues can be overcome.

• there are no power imbalances or if there are, they can be managed appropriately by the mediator

Power imbalances can impact upon the effectiveness and fairness of mediation. 

If the Mediator has concerns, they will take steps to try and equalise power imbalances to ensure that fairness is maintained. If the power imbalances cannot be equalised, the mediation process may need to come to an end.

• there are no safeguarding concerns

Mediators have a responsibility to safeguard children, young people and vulnerable adults and are required to explore whether any concerns arise.   If no concerns arise, it is safe to proceed with mediation.

However, family breakdown often results in difficult living arrangements where there may be an increased likelihood of harm, either between adults or involving children and young people.  Even if the Mediator has no concerns initially, if safeguarding issues arise throughout the process, it may be necessary to terminate the mediation.  

• couples sign the Agreement to Mediate

Mediation is not possible unless all parties to the mediation (including the Mediator) sign the Agreement to Mediate which represents a commitment to the process.  See an example of the Agreement to Mediate here [link to example].

If either individual is unprepared to sign the Agreement, the Mediator will signpost alternative options.

If the Agreement to Mediate is signed by the parties and during the process it appears that the terms are no longer being adhered to, the Mediator will address such issues and if they cannot be resolved, the mediation should be terminated.

• the couple can afford to mediate

Mediation is considered to be a more cost-effective method of resolving issues, however, costs still apply and will be explained by the Mediator and included in the Agreement to Mediate (which creates a contract regards fees upon signing).

Mediation is not an appropriate process if;

• there is a risk issue

Where it is clear that an adult or child is at serious risk of harm, it is not appropriate to mediate.

• there are serious power imbalances

In cases where coercive or controlling behaviour features, the power imbalance may be too deeply established to be properly addressed.

Where there is coercive or controlling behaviour or violence in the relationship, there is a risk that mediation may be used to further intimidate or re-establish the threat of harm.

If a Mediator has concerns that there are, may be or have been issues of abuse, harm or violence, or imbalances of power that cannot be addressed, they will discuss whether taking part in mediation is appropriate and provide information about alternative available support services if it is not.

• it is a high conflict case

Mediation is rarely appropriate in high conflict cases and the Mediator will assist by signposting another process/service which may be better suited.

• there are capacity issues (i.e. emotional, mental or illness)

Individuals are required to participate fully in mediation. If they do not have the capacity to do so, mediation is not appropriate.

If an individual is struggling emotionally, Mediators may suggest postponing until their emotional state (and therefore readiness to engage) is improved.   If there is a concern around mental capacity, Mediators can consider involving another professional such as a Mental Health expert.  If there has been domestic abuse, capacity to engage equally will be assessed very carefully.

Mediators will also be alive to cultural differences which may affect an individual’s capacity to speak freely.

• there is a reluctance to provide financial disclosure in a financial case or concern that information may not be full and accurate

If one of the clients refuses to provide financial disclosure, it may be necessary to terminate the Mediation.  Clients should have a full understanding of the financial landscape before considering outcomes and if they do not have the necessary information, and do not agree to proceed without it, the process will need to be terminated.

In which event, the Mediator can provide written confirmation of any proposals made outside of financial matters, if requested.

For more information see our FAQs here or contact Carly here.