Written by Jo Edwards

Head of Family at Forsters LLP

Jo specialises in dealing with issue which arrives on relationship breakdown and resolving arrangements for children, including cases involving relocation. She also has expertise in advising on pre-nuptial agreements and acting in cases involving unmarried couples.  Jo is also a past Chair of Resolution.

I feel privileged when parents approach me about mediation and entrust me with helping them work through the children aspects of their separation. From run of the mill child arrangements cases with mild-mannered parents who have sadly fallen out of love, to highly conflicted parents arguing over whether one of them should be able to move abroad with the children, I have seen it all.

“You may have fallen out of love with each other, but you have a lifelong relationship as parents”.

When speaking to parents in mediation, I tell them about the devastating impact of litigation. In certain cases, for example where there are parental alienation or domestic abuse issues, child welfare concerns or where one parent has an unrealistic view about what’s in the children’s best interests, court is inevitable and not to be demonised. But for the vast majority of separating parents, it is better for their children for them to make their own arrangements.

So, the question may be asked:

“What are the benefits of amediated settlement?”

I highlight seven main themes:

Tailored outcomes

I have done many mediations where parents have wanted to think ‘outside the box’ and come up with creative solutions that a Judge may not. In one case the dad’s holiday entitlement was so limited that he was prepared to let mum have the child for most of the holidays in return for having a more even sharing of term time than may otherwise have been the case (because he worked longer hours than she did).

I went to the mediation thinking that mum wouldn’t agree, but eventually she did.

In another, dad wanted to move overseas with the two daughters, both of whom wanted to go, but mum was resisting in court. After three mediations, it became apparent that she did not oppose the move but wanted to defer it for a few months until she had found a job in the overseas country, so that she could move there also. Litigation is something of a blunt tool, with outcomes quite formulaic; who better than parents to come up with the best solutions for their kids?

Maintaining relationships

I say to parents in mediation:

“You may have fallen out of love with each other, but you have a lifelong relationship as parents”.

There is nothing that ruins a parental relationship, sometimes irreparably, more than hard- fought litigation in which allegation after allegation has been made. I have parents I acted for in litigation 10+ years ago who contact me because they still cannot agree on anything, battle-wounded from the court experience. It is difficult to get parents back on the same page in parenting terms after litigation, even with family therapy.

In mediation, whilst parents may not always see eye to eye, I encourage them not to dwell on difficult memories from their relationship, but to look positively to the future – what can they each offer the children and how can the children benefit from all that they have to offer? That positive focus can reap rewards for future parenting.

Keeping control of the process

The most difficult cases I do, in litigation or mediation, are where parents are at different stages in the grief cycle. Where there are court proceedings, my experience of working with the left behind parent is that they are, at different points, in states of shock, denial, anger, bargaining, depression and (finally) acceptance.

How long each of those phases lasts will vary from person to person. The court timetable will not wait for them; their instructions can (understandably) be erratic and the process upsetting.

When working with a couple in mediation, it is easier to identify where they are in the grief cycle. Often I will encourage the person who is further on emotionally to give things time; to agree what the child arrangements are going to be for the next few weeks or months but not to push discussions around the longer- term arrangements until the other parent is ready.

I often also involve a therapist to help a parent who is struggling. By being able to control the pace, the parents are more likely to reach an agreement in the longer term interests of the children.

Longer lasting outcomes

The child arrangements which are most likely to stick are those agreed by the parents, rather than those imposed by the court.

I have had several instances of court-ordered arrangements breaking down. In some cases, one parent is unhappy with the outcome and will do everything they can to unsettle the arrangements or come back quickly for a second bite of the cherry.

In other cases, both parents are unhappy with the outcome and limp along with the arrangements before one of them applies back to court.

Conversely, the whole point of a mediated settlement is that it has the parents’ buy-in.

There is also an opportunity with a mediated arrangement to ‘road test’ any proposed child arrangements; I encourage couples to trial the agreed arrangements for a month or two and then come back to iron out any wrinkles (sometimes things as simple as, ‘we had forgotten that Jamie’s football lesson is at 4pm on a Thursday so handover at 4.30pm isn’t practical’). All of this makes the arrangements much more likely to stick, and to evolve naturally as the children get older.

Hearing the voice of the child

Whilst there has been much discussion about bringing in greater opportunity for the voice of the child to be heard in the family courts, in practice this is still inconsistent across the country and often unsatisfactory.

In mediation, assuming that they are 10 or older, I will always discuss with the parents whether it would be appropriate to speak to the children. There is much more scope for planning this in mediation – the parents will agree the terms of a letter I may write to the children, the practicalities and agreed messages. For children, it must feel like a less intimidating/ stressful prospect to know that their views are being expressed to help mum and dad reach an agreement, rather than to inform an outcome imposed by a Judge.

Safe brainstorming space

Another benefit of the journey of arriving at a mediated settlement about child arrangements is that it affords a safe space to discuss ancillary issues. Many of the parents I see have solicitor negotiations or court proceedings on other issues in tandem. Sometimes one or both of them will turn up tomediation with reams of correspondence, complaining that it has costthem x thousand pounds to try to resolve, for example, an issue around the children’s passports or the interim finances/living arrangements.

I tell parents that no topic is off bounds, provided they both agree it should be covered. Often with open, facilitated dialogue, an issue which may havebecome polarised isresolved.

Cost

A huge benefit of a mediated settlement is the saving in costs that will be made.

I saw a couple in mediation last year who had spent thousands and thousands of pounds trying unsuccessfully to reach an agreement. Over a series of sessions I helped them work towards an agreement. I couldn’t help but think: imagine if they had come to see me two years earlier, they could have saved all that money.

Ultimately, it is far better for parents to preserve as much of their hard-earned money as possible by avoiding litigation and attending mediation. Parents will feel happier that money remains for the children, rather than a significant chunk having gone to lawyers.

The benefits of mediated settlement, for parents and children, are hopefully clear. Whilst 90% of separating parents reach their own agreement over child arrangements, 10% don’t. It has got to be our aim to reduce that 10% further, hopefully through mediation or other alternatives to court.

Additional Reading/Resources

If you are facing court alone many people have found Lucy Reed’s book, ‘Family Court Without A Lawyer’ particularly useful.

You may also find our page on How To Tell Your Children You Are Divorcing – Recommended Books useful.

The Handover Book by Ashley Palmer is a unique and simple communication book for separated families. It will allow them both to always be aware of what is happening in their children’s busy lives as they go from one household to another. It’s a way of communicating the important things they both need to know about their children, while keeping your relationship as parents friendly and calm.

Charlotte Friedman has written Breaking Upwards – How To Manage The Emotional Impact Of Separation. Charlotte offers calm, therapeutic advice on everything from how to manage loneliness to letting go of grievance, and draws on illuminating case studies to answer questions such as:  How long before I get over this divorce? How do I tell the children?  How do I cope with the new partner in my ex’s life?

 

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What happens after mediation?

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