What is family mediation and how does it work?

Family mediation is a structured, confidential process in which a trained, independent mediator helps separating couples or family members reach their own agreements — on arrangements for children, finances, or both. The mediator facilitates discussions, helps identify areas of agreement and disagreement, and supports both parties in exploring options. Sessions typically last around 90 minutes (although they can and do often run longer if progress is being made) and take place over several meetings, depending on the complexity of the issues involved. Mediation is voluntary, and anything discussed remains confidential and cannot usually be used in court proceedings except with joint agreement.

Will the mediator tell us what to do or take sides?

No — and this is perhaps the most common misconception about mediation. A mediator is not a judge, arbitrator, or decision-maker. Their role is to remain strictly impartial at all times, facilitating a productive conversation rather than evaluating who is right or wrong. They won’t give you legal advice, express a view on the merits of one position or the other, or pressure either party toward a particular outcome (this last one is often a point of confusion when as part of the process the mediator ‘reality-tests’ a suggestion). Any agreement reached is one you and the other party have chosen freely. This is a fundamental principle of mediation.

Do I still need a solicitor if I'm using a mediator?

Yes — and a good mediator will actively encourage it. Mediation and legal advice work alongside each other, not in competition. While the mediator helps you and the other party reach a practical, pragmatic agreement, a solicitor ensures you understand your legal rights and the full implications of any proposed terms before you commit to them. Your solicitor can then help with formally recording that agreement (see below), for example a financial agreement will need to be made binding through a court order.

What kinds of family disputes can mediation help with?

Mediation can assist with a wide range of family law issues, including: arrangements for children (where they will live; how much time they spend with each parent; schooling and holidays. It can also help with disputes between other family members such as grandparents seeking contact with any grandchildren); financial matters following separation or divorce ( for example, the division of assets on separation; spousal maintenance; cohabitation claims); and disputes for unmarried couples over the extent of any interest in the family home and financial provision for any children of the relationship.

When would a dispute not be suitable for mediation?

It is not suitable in cases involving domestic abuse or where there is a significant power imbalance between parties — in those situations, a mediator is required to screen carefully, and court proceedings may be more appropriate. A responsible mediator will be live to this potential issue and not mediate for the sake of it. If one party has only attended mediation to tell the other what the outcome will be and is implacably opposed to any other solution, the mediator will bring the session to a close. If one party is taking an extreme position then their idea of compromise is likely to still be beyond the bracket of realistic outcomes - it is a mediator’s job to explore that. It is not a loss of impartiality to test a position of this kind.

Do both parties have to agree to mediation for it to work?

In most cases, yes — mediation is a voluntary process and works best when both parties enter it in good faith. However, agreeing to try mediation is not the same as agreeing on outcomes, and it is perfectly normal for one or both parties to feel reluctant or sceptical at the outset. A skilled mediator is experienced in working with that reluctance. What is required is a willingness to attend and engage, not an assumption that it will succeed. Often, when an individual who is initially resistant to mediation is properly informed (couples to a mediation will meet with their mediator separately priorto any first joint session to explore the process and the other non-court dispute resolution options available), they will find that it is a more attractive path than litigation.

What happens if we reach an agreement in mediation?

If mediation is successful, the mediator will produce a document called a Memorandum of Understanding, which sets out the terms you have agreed. This is not itself legally binding, but it will often form the basis for your solicitors to draft a formal legal agreement. In financial cases, this will typically become a consent order approved by the court; where the agreement concerns the arrangements for any children, it may become a parenting plan or, if needed, a child arrangements order. Reaching agreement through mediation is generally faster, less costly, and less adversarial than going to court.

David Lillywhite is a collaboratively-trained lawyer and mediator who has also undertaken trauma-informed training to assist with his practice supporting separated couples.

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