Mediation and collaborative law: minimising the impact of conflict on children involved in relationship breakdown

As Resolution members, all of the solicitors in our Family and Divorce Team understand the importance of putting children first during relationship breakdown. We support the guidance issued recently in the video (see left) launched by Resolution. This provides top tips for parents to help minimise the impact of conflict on children involved in relationship breakdown.

We understand that when family issues arise, it is often a very worrying and sensitive time, especially when children are involved.  As this video explains, communication is vital and parents should endeavour to adopt a united front to help support their children through the difficult issues that arise during a relationship breakdown. 

Parents should let their children know what is happening and reassure them that it is not their fault.  Communication should be kept simple so that children are not overwhelmed with too much information.

As this video explains, parents and children are likely to feel a range of emotions, including upset, anxiety and anger for example. Steps should be taken to address these feelings and to seek professional support, where necessary.

It’s all about working together and putting the best interests of the children first. Children should not be made to choose between their separated parents and steps should be taken to ensure that they are not drawn into any dispute arising between their parents.

How then can parents minimise the impact of conflict on children on relationship breakdown? How can they put children first without going to court?

These are questions commonly asked by parents involved in separation.

Most families will prefer, where possible, to resolve matters in an amicable and civilised manner so that court proceedings can be avoided. They will prefer an option which enables them to put the best interests of their children first, so that they can focus on working together to sort out the practical arrangements of their separation. This helps children facing a family break-up as they witness their parents working together to plan for their future, albeit as a separated family.

What are the options?

There are a number of options available to families facing relationship breakdown, all of which can enable parents to minimise the impact of conflict on children. Today we are focussing on mediation and collaborative law, but parents should also be aware that there are a number of other options available, including traditional solicitors’ negotiation, arbitration and private judging.  Please contact us if you would like to find out more about these other options.

Mediation

Mediation has been around for many years. However, since 22 April 2014 it has become compulsory for anyone wanting to make a relevant family court application to first attend a Mediation Information and Assessment Meeting (called a MIAM) with an appropriately qualified mediator to find out about mediation and other non-court options. There are limited exceptions when attendance at a MIAM is not required. However, ordinarily, a court may not issue or otherwise deal with an application if the applicant has not attended a MIAM.

The process involves the couple meeting with an independent trained mediator. The couple’s respective solicitors will not be present at the mediation meetings. The mediator may well be a solicitor, but, if they are, then they are not able to advise or act for either of the parties in subsequent court proceedings relating to or arising from their divorce or separation. In practice, the mediator will recommend for both parents to take independent legal advice alongside the process and especially at the end, if an agreement is reached.

A mediator has no power to impose an outcome on the parents, but will sign off any agreement reached. In mediation it is possible for a negotiated settlement to be achieved relatively quickly, even within a matter of weeks. For this reason, mediation can be a very effective way of solving all types of family law disputes, including the financial and children arrangements arising from relationship breakdown.

If an agreement is reached at mediation, the mediator will prepare a written summary of the agreed terms together with a summary of any financial disclosure exchanged between the couple. The agreement does not become legally binding until both parties have had the chance to talk it through with, and take advice from, their own solicitor. If, after legal advice, both are still happy to proceed with the agreed terms, the family lawyers will convert the agreement into a legally binding document. In cases where there are pending court proceedings this document is known as a Consent Order. The family lawyers will also assist the couple with any necessary implementation matters.

Collaborative law process

The way collaborative law works is that the couple both instruct their own collaborative lawyer from whom they each receive guidance and legal advice throughout the process. A collaborative lawyer is a family lawyer who has received additional specialist training, normally from Resolution, and who is qualified to undertake such work. The couple and their respective collaborative lawyers all sign a written agreement committing them to use the collaborative law process to resolve matters rather than go to court.

A series of 4-way meetings will then follow, which each party and their respective collaborative lawyers attend. The purpose of the meetings is to work things out face to face rather than go to court and the process has a good success rate.

If necessary, independent and impartial third parties who are familiar with collaborative law can be brought into the process to assist the discussions, such as independent financial advisors, family consultants, child specialists, accountants or a collaboratively trained barrister. All of these professionals can help to make up a collaborative law team.

One of the reasons why collaborative law is so successful is because, in the unlikely event that an agreement cannot be reached between the couple and the collaborative law process breaks down, both of the lawyers are prevented from representing the couple in subsequent court proceedings. This means the couple and their lawyers are committed from the outset to reaching a solution and working things out together, though in practice a conciliatory approach is adopted by the majority of family lawyers even if not using the collaborative process. Clients who opt for the collaborative process must be prepared to change to a different firm of solicitors if the process does not result in an agreement.

Collaborative law is suitable for all types of family law matters. One of the main advantages of negotiating an agreement outside of the court process is that couples can set the agenda according to what matters most to them and their family. The pace of the process can be adapted to suit the individual family so that they can work things out as quickly as they wish rather than in accordance with a strict court timetable. As with mediation, once an agreement is reached, the lawyers will deal with implementing the agreement and recording it in a formal document, usually by way of court order.

The benefits of mediation and collaborative law in terms of minimising the impact of conflict on children

When parents involved in relationship breakdown have a genuine wish to reach their own amicable agreement without embarking on emotional and costly court proceedings, they should consider mediation or collaborative law, along with the other alternative options mentioned above. This is particularly the case when children are involved given that the couple will remain parents even after their separation. It is widely accepted that children cope better with family breakdown if they can see their parents working the arrangements out together. The mediation and collaborative law processes can assist with this by creating an environment whereby it is possible for parents to reach solutions together to ease the pain of family breakdown and to minimise the impact of conflict on children.

If you would like to make an appointment or have any questions arising from the matters raised in this article please call 01206 574431 or email info@tsplegal.com.