The FCA – Transformation to Assertive Supervision
The traditional family mediation model sees clients agree on the identity of one qualified mediator, and meet with that person together. One of the big advantages of mediation compared to a court approach is the flexibility that can be offered to clients, with a number of mediation models and styles from which to choose. With the agreement of the couple and their mediator, a mediation can be tailored to meet the needs of the individuals and to help them explore different issues with the right level of support.
One option available to clients is co-mediation, namely a mediation involving more than one mediator (usually two). Co-mediation is not suitable for every case, but there are sometimes good reasons to involve two mediators.
Mediators have different skill sets, qualities, personalities and backgrounds. Depending on the complexity and nature of issues that need to be explored, clients may see the benefit of involving two mediators in a mediation process. Mediators working together in a co-mediation should complement each other, rather than conflict, and provide the full level of support and experience that the clients feel they need to give them the best chance of successfully exploring the issues arising on their separation together. Below are some frequently asked questions about the co-mediation process, to help you consider if this is a model which may assist you.
There can be many reasons for co-mediation to be explored. I am both a family law solicitor and a family law mediator. Although I cannot give my mediation clients legal advice, I can provide information as to the court’s approach (as the yardstick against which they may wish to measure any suggestions or proposals) and I am duty bound to say if an idea they are exploring is outside of what a court may order (that does not prevent them from agreeing it in any event). I also frequently signpost clients to different resources or services if I think that may help. Not all family law mediators come from a legal background, and there are many with other professional experience that can be of huge value to clients within the mediation process, such as child therapists, financial advisors or accountants.
If, for example, clients feel like they would benefit from a mediation process that can bring in different expertise, such as a legal approach and a therapeutic approach, having two mediators (with different skills), can be of huge value to clients as they try and navigate any barriers to a possible solution to the issues between them. The type of mediators you need will depend on the issues you and your partner wish to explore, and what you each feel you need to make the mediation process work.
If you wish to explore co-mediation, both you and your ex-partner will need to agree the identity of both mediators. Ideally, you will both meet with both mediators before the process can begin, who will need to confirm they consider the case is suitable for mediation and, importantly, that they agree to act as a co-mediator. If co-mediation is agreed, all involved will need to sign an Agreement to Mediate, which must be signed before the mediation process can start together.
Differing expertise is not the only reason to consider co-mediation. Some cases can have important cultural considerations. For example, individuals may come from different cultural or religious backgrounds and may feel that their mediator should have some understanding of this. Where there are differing cultural considerations, having two mediators who together can reflect and understand both, may feel important to the clients and help both clients feel that these are being understood and considered as part of the process.
Mediators must take care to act in an even handed way, and to ensure that the mediation process feels like a safe space for both clients where they can voice their views, concerns or ideas freely. Unfortunately there are sometimes relationships where there is an actual or a perceived power imbalance between the couples. Co-mediation can be a way to address this, if the presence of two mediators helps establish a more even power balance in the room. That does not mean that one mediator is for one you and the other mediator for your ex-partner; both mediators must be impartial and even-handed. They are not there to take sides or to advocate for either of you. However, the presence of two mediators may help address the perception of any power imbalance for one or both of you, to help you both feel comfortable and safe in the mediation process.
Sometimes the need for a co-mediator is not readily identifiable at the outset, and mediation may have started with a single mediator before the possible need for a co-mediation approach is identified. If you are currently in mediation, and you wish to explore bringing in a second mediator, this is something you can explore with your current mediator and your ex-partner. Your current mediator may be able to give recommendations for a second mediator, which both of you can then consider. Your current mediator and any proposed second mediator will need to agree to act as a co-mediator, and a new Agreement to Mediate reflecting this will need to be signed.
Mediators are not there to take sides. They are neutral individuals, who are there to assist you both to explore ways to resolve any disputes and reach agreement on any issues between you. The presence of two mediators does not change this. Co-mediators should complement each other rather than conflict, and are very much working together to help you and your ex-partner work towards a resolution.
No, and sometimes there can be a benefit to instructing mediators from different organisations, particularly if this means they can bring a different approach or differing expertise if this is what you feel they need. What is important is that the mediators feel they can complement each other and work well together, to give the mediation process the best chance of succeeding. What is crucial is that both you and your ex-partner feel that the two chosen mediators are right for you, and that the mediators are comfortable working with you both and the other mediator using a co-mediation model.
It is possible that having two mediators may be more expensive than one, as both mediators will charge a fee for their time. These fees should be agreed in advance, so both you and your ex-partner are clear what they entail. However, if co-mediation sees the mediation process prove to be more effective, costs can be lower in the long run, either because fewer mediation sessions are needed overall or because the mediation process is successful in helping you reach agreement, and thus avoiding litigation.
Stacey is a Senior Associate in Kingsley Napley’s family and divorce team. She advises UK and international clients on matters involving all aspects of family law, in particular complex financial issues and private children cases.
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