Mediation: A Real Alternative to Court?

Nigel Martin trained as a Mediator at Harvard Law School in 2014 and has successfully mediated Disputes adopting the Model of Understanding.  This is the second in his series of Guest blogs which looks at alternatives to Court proceedings.

In his last blog,  Nigel looked at the processes of mediation; here he explores the benefits of mediation.

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When considering Mediation as an alternative to Court proceedings the key benefits to bear in mind are as follows:-

1. Mediation saves time.

Mediation can be arranged in a matter of days or weeks. A Court hearing requires proceedings to be drafted, issued, responded to, documents to be disclosed, Expert Opinions sought, Review Hearings, Direction Hearings and obtaining a date for a Final Hearing can take many months or longer in high conflict or complex cases.

2. Mediation is forward-looking and positive.

The Court Proceedings focus on past events, conceptualising those events in terms of legal Rights or Wrongs. The Court’s remedies are relatively limited and take little account of the parties’ present or future interests. Mediation focuses on the future and how to get there. Mediation can capture value which may not ever be considered by the Court.

3. Mediation is entirely voluntary.

A party can choose to remain or withdraw from mediation at any time. By contrast, a Party to formal Court Proceedings is compelled to engage in a competitive and oppositional battle or risk a very adverse finding being made against that party.

4. Mediation is empowering and the parties control the process.

The parties together, can dictate the timetable for mediation and the speed of progress. They craft and control the outcome. Mediation can therefore happen much more quickly than waiting for a Court date. The parties can together, chose the time, date and place of the mediation to accommodate their respective timetables and ensure privacy. The Parties have complete control over costs.

5. Mediation is private and confidential.

What is said or not said during the mediation process is completely private and confidential. Strict confidentiality is provided for in the legally binding and enforceable Agreement to Mediate.

6. Mediation can preserve relationships.

The Court process requires the parties and their respective lawyers to compete against each other and the process is largely oppositional. Most of the time, effort and costs are devoted to simply resisting the forensic “push and pull” of the Opponent. Over time, that competition, is highly corrosive of any pre-existing relationship whether it be Contractor and sub-contractor, Manufacturer and Distributor, Wholesaler and Retailer, a professional or personal Partnership or a family relationship.

The process of mediation, facilitated by an expert neutral person, will not harm that underlying relationship and will in most cases preserve or enhance it. By contrast, Court Proceedings usually award one party a “Victory” and require the other party to suffer a “Defeat”. This dynamic alone is most unlikely to foster good relationships.  In Mediation, where the parties can model agreement and gain a better understanding of each other, their relationship can be enhanced even if the dispute cannot ultimately be resolved through mediation.

More information can be found on mediation, arbitration and litigation at www.nigelmartin.co.uk.

Mediation & Relationship Breakdown: Making Your Child’s Rights a Priority

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This week is Mediation Awareness Week 2015 and you may have heard Joan Davis, Director of Family Mediation NI talking about the benefits of mediation this morning on U105 FM.  

To help mark Mediation Awareness Week 2015, Joan has provided Life Law NI with a guest blog looking at the importance of making your child’s rights a priority when dealing with relationship breakdown and how mediation can help assist you in doing this.

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“25 years after the Convention on the Rights of the Child, the question needs to be asked – why does society still ignore child rights?

We hear a lot about human rights, animal rights, parental rights, minority rights and so on from mainstream media, but what about the rights of children?

Article 9 of The United Nations Convention on the Rights of the Child states: –

’Children have the right to live with their parents unless it is bad for them. Children whose parents do not live together have the right to stay in contact with both parents unless this might hurt the child’.

Let’s look at that statement in the context of 21st Century family life here in Northern Ireland:-

  • In 2014, 8,443 children in NI were the subject of final Court orders in Children Order cases.
  • Of these 8,443 children, 3,383 were under 4 years old, 2,468 between 5-8 years old, 1,683 between 9-12 years old and 90 were between 16-18 years old.
  • In 2013, 42% of the births in NI were to unmarried parents.
  • A total of 4,100 children were affected by 2,403 divorces in 2013, yet divorce statistics do not reflect current relationship and family patterns in NI family life.

It is important to consider that behind every statistic, there is a child potentially being denied a healthy relationship with one parent.

You may ask; ‘Where are a child’s rights and voice in all of these adult-constructed life-changing experiences?’   Ok , after separation, some children of a certain appropriate age will be spoken to within the legal system by a Court Children’s Officer and their views and wishes will be sought.  But is this the way we should be approaching our future private family life choices, living as separated parents?

You could also ask; ‘Why do parents default to the law when a romantic relationship ends?   What can we do as a society to begin changing a deeply ingrained mind-set that essentially disables otherwise capable people and renders them incapable of making a sensible decision about their own children’s future?

Independent legal and financial advice is always useful to enable informed decision-making upon separation.  However, for better long-term relationships and for the overall well-being of the child and safeguarding of the child’s rights for the future, Family Mediation NI offers a 21st Century approach to modern family disputes.  We believe mediation should be the natural and first choice for most separating parents.

Entering the process of family mediation empowers parents.  It enables parents to be the natural decision makers and encourages the child’s voice to be equal, to be heard and to be respected.

Child-focused mediation and, in appropriate cases, direct child consultation moves a family from an acrimonious, adversarial, ‘blame game’ system of behaviours to a responsible, future-focused, co-parenting state of mind.

Mediation provides the thinking, talking and listening space, the negotiating space and the neutral space.  It facilitates option generation, assists agreement on a bespoke parenting plan and ultimately a mediated agreement that informs the way forward and introduces the learning of a new form of communication as separate but loving parents, with the child at the heart of the process.

Joan Davis

FMNIJoan Davis is the Director of Family Mediation NI.  Mediation Awareness Week takes place in Northern Ireland from 19th October – 23rd October 2015. Contact Family Mediation NI for more information and details or check out www.mediationawarenessweek.ie

Family Mediation NI

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JoanDavisFMNIJoan Davis is the Director of Family Mediation NI, an organisation aimed at assisting couples upon their relationship breakdown to reach amicable, child-focussed arrangements between themselves. She has provided some information on the organisation and the services they provide:-

What is Family Mediation NI?

Upon the breakdown of a relationship, there are many issues that need to be discussed and decisions that need to be made by both parents in order to move forward not only as individuals but also as co-parents.

Issues which a separating couple may need to discuss can include the following:-

  • Working out best arrangements for your children upon separation – where they are to live, how often they are to see either parent, what school they are to go to, etc
  • Financial matters such as the division of the marital home and other property
  • Child support and maintenance matters
  • Any other problem particular to your circumstances

Separating from a marriage or relationship can be an emotionally charged time for all parties involved and this can sometimes make discussing the above issues in a reasonable and amicable manner very difficult.

Family Mediation NI offers the opportunity for parents, or (former) couples, to discuss any or all of these matters together with the assistance of a mediator to reach a jointly negotiated agreement.

Do I have to use Family Mediation?

No, Family Mediation NI is voluntary and nobody can be compelled to take part against his or her will.   It is often very helpful in assisting people in reaching their own negotiated settlements. The first appointment is always an introductory one so you can consider whether mediation is a way forward for you at this time.

Is Family Mediation confidential?

Yes, all discussions in Family Mediation are confidential.  This confidentiality can only be breached if a crime is alleged against a child, the mediator considers someone to be at serious risk of harm or allegations are made of criminal or fraudulent activity.

Will I need a Solicitor?

At Family Mediation NI, your mediator can record your decisions and summarise them in a written document known as a ‘Mediated Agreement’.  This is not legally binding, but can form the basis of a legal agreement, if your circumstances require this approach.

In mediation, the process belongs to you, you do your own negotiating, removing the need for lengthy solicitor negotiations and legal action and the associated costs, both emotional and financial.  You each may consult a solicitor, pre-mediation to advise you and to make any agreement reached legally binding, if you so wish.  Mediators are neither counsellors nor advisers and do not at any time give legal advice but can help you generate options relevant to your family circumstances.

If you have children, Family Mediation can help you discuss how to talk to your children to ascertain their views and to help them to understand what is happening and in certain cases direct child consultation may be assessed as appropriate.  You may also obtain help in how to tell your children about the breakup and reassure them that both of you are finding a way to support the family move forward.

At Family Mediation NI, we offer a 21st Century approach to modern family disputes. We believe that mediation should be the natural and first choice for most separating parents. Family Mediation NI is available throughout NI.

Joan Davis, FMNI Director

For more information on the services Family Mediation NI offer and the support they can provide you with, please contact them on Enquiry@familymediationni.org.uk or telephone 028 9024 3265
Mediation Awareness Week takes place in Northern Ireland from 19th October – 23rd October 2015. Contact Family Mediation NI for more information and details or check out www.mediationawarenessweek.ie