MEDIATION

We at Berris Law understand that couples involved in disputes arising from the end of their relationship may need professional help to resolve those issues. Indeed in most circumstances before any party can proceed to court there is an expectation that you engage in a mediation process with an independent mediator.

Berris provides an affordable alternative for divorcing or separating couples wanting to resolve issues such as:

• How best to separate
• Where children should live
• Contact arrangements for children
• Division of assets and financial support
• Financial arrangements around debts
• Child maintenance and support payments
• Short-term plans and long-term plans

Also use family mediation if:

• You are not seeing your child and want to
• Court arrangements have not worked
• Family disputes need to be resolved
• You are a grandparent or family member wanting contact or a forum to discuss other arrangements

We offer the initial Mediation Information Assessment Meeting at a cost of £100 plus VAT. Mediation sessions are a cost of £200 plus VAT for 2 hours. To find out more contact us

What is Mediation?

The activity of Mediation has existed for many centuries and has occurred all over the world in many different formats. In the UK, mediation is an official process embedded into the legal system; and is defined as a non-adversarial procedure in which neutral, specially trained professionals assist parties in reaching a settlement of a dispute. All parties take part in the process of their own free will and often under the terms of a confidentiality agreement. Nothing binds them to the process unless they wish to be bound and any admissions, concessions or offers are without prejudice and non-binding to the point of formalised agreement. In the event that the parties do make agreements, they may be formalised in writing in a manner that is acceptable to all parties in order to become binding and therefore legally enforceable, if so desired. 

The aims of the mediatory discussions are to arrive at a mutually acceptable agreement in relation to the objectives. The parties are encouraged to consult with their advisers before and during the mediation before finalizing an agreement. The mediator at no time acts as a legal or personal advisor to any of the parties and is present to control the process and not the content. 

Types of Mediator
There are three broad types of mediator:

Facilitative: A facilitative mediator attempts to facilitate negotiation between the parties rather than making recommendations. The focus is on encouraging parties to a dispute to find their own solution by exploring each other’s objectives and stakes. 

Evaluative/Directive: Evaluative mediators on the contrary express opinions and make recommendations and suggestions based on the legal merits of the parties’ arguments.

Transformative: Transformative mediators focus on empowering parties and encouraging them to recognize each other’s objectives and stakes.

Use of Mediation

Mediation is practiced in many different ways and circumstances across the globe. The rapid emergence of this form of dispute resolution has led to fascinating interpretations on the practice as it has developed and integrated comfortably into the legal system of many countries: saving time, cost and allowing access to justice to those who cannot afford it.

In the UK, mediation is recognized as an appropriate form of ADR when disputes arise. In some family private law proceedings, it is compulsory to attend before having a case heard at court. In other areas of law in the UK, its use is only recommended.

The process is flexible enough to be used as a hybrid form of ADR in the form of ‘Med-Arb’ or ‘Arb-Med’. The ‘Med-Arb’ process is one where a dispute begins as a mediation and moves on to an arbitration (if mediation does not work) in order that a point within the dispute can be arbitrated. The parties can then choose to return to mediation if there are other disputed issues to resolve. Similarly, the ‘Arb-Med’ process is one where an Arbitrator hears arguments, makes an ‘Award’ but keeps it from the parties until mediatory discussion conclude. If mediation is successful then there is no requirement for the Award, if mediation is not successful, the Award is binding.

Advantages of Mediation

In understanding the benefits of the process of mediation it is important to understand what parties choosing to attend mediation actually want. They want a quick settlement on reasonable terms and with a real participation in making the decisions with a chance to communicate and to be heard. In view of that, the advantages of mediating disputes are thus:

Cost
Mediation is considerably less costly than litigation because the only expenditure is the mediator’s hourly/fixed fee and the relatively inexpensive cost of recording the agreement by way of a court order. If the disputes are settled early then it is certainly money well spent. In litigation, huge amounts are spent on lawyers and often experts in preparation, as well as court fees, not to mention the time spent away from the business focusing on the dispute.

The cost of litigating disputes may include fees for lawyers, experts and indeed court fees. Mediating disputes can halt legal proceedings and bring an end to a costly dispute. The indirect consequences of litigating can also be costly as, for example a business can grind to a halt awaiting a supplier to provide goods relied upon, or projects can stop indefinitely until resolution. 

Speed    
Whilst parties save money on protracted disputes, they also save time. Outcomes are often reached on the day and recorded in writing; once recorded it cannot be appealed, unlike in civil litigation. The agreements are then given a legal framework from the court which is final, binding and most certainly enforceable; the implications of breaching can therefore be significant. 

Flexibility in the Process
In essence, both parties can decide to attend mediation whenever a dispute arises (although it may be pre-condition within a contract) or even within a dispute that in going to an arbitration or court, it is a consensual process. Both parties can also choose a mediator, who they both feel has the knowledge and expertise within their area and who will be fair and equitable to both parties, as opposed to having no option like a judge in litigation. There is flexibility in the solutions suggested, as parties are allowed to be as creative as they possibly want as opposed to formal proceedings.

Procedural Justice/Fairness
Parties are empowered in the process of mediation and have the greatest possible opportunity for participation in determining the outcome for their dispute, for self-expression and communication. In short, the process is subjectively fairer than other forms of dispute resolution as parties are allowed a fuller opportunity to express themselves and communicate their views on issues that they view as important. This is the value of self-determination.

Preserves Relationships
At the heart of the majority of disputes are clashes of personalities. Perhaps the most significant feature of the mediation process, is the ability for both parties to resolve their dispute and continue their relationship as parties are full participants and can express their own opinions and concerns rather than their lawyers. Mediation allows parties to collaborate and reach a mutually beneficial settlement of all issues and ultimately continue working together; it prevents mutual demonization as communication flow is better. If decisions are imposed on parties by way of a court judgement or arbitral Award, there is more chance that the relationship will come to an end swiftly, and that is often not in anyone’s interest. In short, mediation produces higher levels of satisfaction and compliance.

Focuses Issues
Sometimes disputes arise and the reason behind those disputes are not always what they seem. For example, a legal dispute could be a smokescreen for other difficulties party is facing. By getting parties in a room together, the real problems are unveiled as parties are the protagonists and cannot hide behind their lawyers. Moreover, the appointed mediator is often an expert within the field and is able to assist the parties in focusing on the real issues by testing the reality of their opinions and positions.

Private Process
Mediation is a private process and not subject to public knowledge, which has its benefits if the parties or businesses have a high profile. Furthermore, should the parties not settle, everything divulged to the mediator, including confidential information or offers, cannot be used outside of the process and parties will sign an agreement to this end before the mediation.