Family Mediation in Wellington
Family Mediation is often in the case of a divorce or separation where an outcome needs to be determined as to the future of any children, property or finance that the separating parties own. Family mediation is a process of resolving family disputes by an independent, trained mediator to helps the splitting couples to find out a solution for the issues related to children, finance and other family-related matter. The mediator facilitates the negotiation to find a solution that works for both. In divorce or ending civil partnership cases, attending a court hearing is not required most of the time. Still, in cases where there are issues related to children and finances, the Court will expect the parties to consider mediation before applying to the court to hear their case.
Mediation offers the following benefits:
- Less conflict, anxiety and stress
- An easier transition for children
- Speedier resolution of issues – Better decision making by both partners
- Significant cost savings
- Improved communication and co-operation
- Complete control over the outcome
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Family Mediation FAQs
When two people separate, there are usually several decisions that have to be made about issues such as:
- How to separate
- What to say to the children
- Who will live where
- The distribution of money and property
Mediation provides an opportunity for you to consider some or all of these matters together and, with the help of a mediator, decide jointly what you think are the best arrangements for you and your family.
A mediator will meet with you both for a series of sessions, in which you will be helped to:
- Make a list of all the matters you wish to consider
- Collect the necessary information
- Talk about the choices open to you
- Negotiate with each other to reach decisions that are practicable and acceptable to you both
- Discuss how you can consult your children appropriately about arrangements you decide to make
The mediator’s job is to act as an impartial third party, helping you to exchange information, ideas and feelings constructively so that you can progress towards joint decision-making. The mediator has no power to impose a settlement; responsibility for all decisions remains with you both since you will know better than anyone what is suitable for your family.
After a mediation appointment, the mediator will usually provide a summary of the outcome of that meeting to help you take the next steps. This might include the options you have considered, the agreements you have made, things you need to research or information you need to provide at the next meeting.
At the end of mediation, the mediator will usually prepare a full mediation summary outlining the decisions you have reached. If you have mediated about finances, this might be two formal documents – an Open Finance Statement and a Memorandum of Understanding.
The mediator must remain impartial, so they cannot advise you about which option is best or work to protect your interests. At certain points in mediation, the mediator may recommend you seek independent advice outside of mediation, including legal advice. The mediator will usually draw up a summary of mediation to help you do this and can also provide details about local solicitors or other organisations if you do not already have this information.
The decisions you make in mediation are not immediately legally binding but can form the basis of a financial and/or child arrangements order. We will prepare documents that make this next stage as straightforward as possible, and you can discuss the next steps with your mediator to help you decide on the best route to achieve a binding agreement.
Yes, mediation is confidential. We will never pass contact details or other personal information on to a third party without your agreement other than in the circumstances stated below:
- We must contact the appropriate authority if we think that you or another party to mediation is at risk of harm.
- By law, we must report to the appropriate authority any suspicion of money laundering by people undertaking mediation.
Courts are likely to regard the discussions as privileged. What you say during mediation cannot later be used in Court as evidence. We will ask each of you to agree that all discussions during mediation take place only to attempt to reach a settlement and are on the basis that they are confidential and will not be referred to in evidence in any court proceedings or affidavit about the same issue.
Facts disclosed during mediation are regarded as open; this includes the information provided when mediating about finances. This information will need to be verified with supporting documents during mediation. While it remains confidential, the information may be used subsequently in court. This means that if an agreement is not reached in mediation, you can still use it as the basis for further discussions.
- It gives you more say about what happens.
- It is less stressful, with less conflict between you and your ex.
- The agreements you make can be changed if your circumstances change.
- It can be less upsetting or damaging for any children involved – and helps them continue important family relationships.
- It can be quicker and cheaper than long drawn-out court battles
Family mediators are there to help you reach decisions about important things for you and your family. They can help you find a way to plan for the future and to agree on what will work best for you without having to go to court. That can save you time, money, and stress.
Mediation provides you with space and time to think about what is most important for your children and the whole family. You can work out how arrangements for your children will work best and think about what will be important for your children as they grow up.
Regardless of whether you are a parent or not, mediation can help you deal with your money, the options you may have about where you will live, and planning your future finances.
Contact a mediator as soon as you need help sorting things out. Even if you have been separated for a while, or if your case has already gone to court, mediation can still help to resolve things.
You cannot usually take your case to court until you find out if mediation can help you first. If you cannot show that you have considered it, the judge may stop or delay proceedings until you have. Once you have found a mediator, the next step is to attend the first meeting with them to find out if it is right for you. Sometimes this is called a Mediation Information & Assessment Meeting (MIAM). If your case is not suitable for mediation, you will still need to show the judge you have considered it by filling in the relevant court form.
Family mediation works for many people, but it is not suitable for everyone. For example, it may not work if:
- Someone’s safety is at risk, for example, where domestic violence or child abuse is involved. If you have evidence of the violence or abuse, you can take your case straight to court without having to consider mediation. You may qualify for legal aid to do this.
- Your dispute is about financial issues, and you or your partner is bankrupt.
- You do not know where your ex is and cannot contact them.
- Your mediator thinks mediation will not be suitable for you.
If your case is not suitable for mediation, you will still need to show the judge why by filling in the appropriate Court Form (please ask your Mediator or Solicitor, if you have one, for the proper form).
Parental responsibility is not an easy concept to understand. It is defined in the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. A person who has parental responsibility has the right to be involved in major decisions concerning arrangements for a child, e.g. education, medical treatment, change in residence. However, the acquisition of parental responsibility does not give a person the right to interfere in day to day arrangements for a child.
A mother has automatic parental responsibility – so does a married father. However, an unmarried father will only have parental responsibility if the birth registration took place after 1.12.03 and the father is named on the birth certificate.
You can acquire parental responsibility in two ways:
- By entering into a written agreement with the mother on a prescribed form. This form has to be witnessed by a court official and is then sent to the Principal Registry of the Family Division in London, and sealed copies are returned to each parent.
- By applying for a court order. The courts rarely refuse a father an order for parental responsibility particularly if he can demonstrate commitment towards the child by contact and financial support.
It is possible to acquire parental responsibility in two ways:
a) You can enter into a written agreement with the parent or parents who already have parental responsibility for the child.
b) The court may grant a parental responsibility order.
A residence order sets out the arrangements as to the person with whom a child will live. A residence order gives parental responsibility (if not already held) to the person whose favour the order is made.
A residence order can be shared between two people, so the children have more than one place they consider to be their home, and their time is shared between the two.
A contact order requires the person with whom a child lives to allow the child to visit or stay with the person named in the order or to have contact in some other form.
Contact can be direct (visiting/staying) or indirect (letter/cards/presents).
Contact with his/her natural parents is regarded as a fundamental right of the child, and there have to be strong reasons for a court to refuse contact.
These are outdated legal terms. Parental responsibility and residence have replaced custody and contact has replaced access.
As a grandparent, you will need leave of the court to bring an application for residence or contact unless the child has been living with you for a period of at least three years. The court will look at the connection you have to the child, the type of order you seek and whether there will be any disruption to the child’s life to the extent that harm will be caused.
As a step‐parent (if you are married or have been married to the child’s parent), you can bring an application for residence or contact without the necessity of applying for leave of the court.
A prohibited steps order is designed to prevent a parent from doing a specific thing relevant to their child without the consent of the court. Such an order can be made in conjunction with a contact or residence order. Frequently, it is used where a parent is threatening to take the child out of the jurisdiction of the court.
This order allows the court to determine an issue usually relating to some aspect of parental responsibility, e.g. where there are differences as to schooling, medical treatment, changing a child’s surname and other specific aspects of a child’s upbringing. As with prohibited steps, the order can be made in conjunction with residence or contact orders.
Under the Children Act 1989, the child’s welfare is the paramount consideration of the court when looking at the child’s upbringing or the administration of a child’s property or income. Therefore, in reaching many decisions, the court has to consider the welfare checklist set out below:
- the ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding);
- their physical, emotional and/or educational needs;
- the likely effect on them of any change in their circumstances;
- their age, sex, background and any characteristics of theirs which the court considers relevant;
- any harm which they have suffered or are at risk of suffering;
- how capable each of their parents (and any other person the court considers the question to be relevant) is of meeting their needs; and
- the range of powers available to the court in the proceedings.
It depends to a large extent on the court issuing the proceedings. For an undefended divorce, the time from the issue of the petition until the Decree Absolute (the final decree) is usually between 4 ½ ‐ 6 months. It is likely to take longer than this if the financial aspects need to be resolved by the court.
A petition can be presented to the Principal Registry of the Family Division or to any divorce county court. You must have been married for more than 12 months.
There is only one ground for the dissolution of the marriage, i.e. that the marriage has broken down irretrievably and to show that, you must prove one of five facts. If satisfied with the facts, the court will grant in the first instance a Decree Nisi, which cannot be made absolute for six weeks and one day.
The five facts are:
a) the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
b) unreasonable behaviour on the part of the respondent; i.e. they have been violent towards you
c) desertion (for a period of over two years);
d) that the parties have lived apart for a period in excess of two years and the respondent consents to the divorce and
e) the parties have lived apart in excess of 5 years.
The two immediate grounds, a) and b), are the most common. With an adultery petition, it is no longer necessary to name the co‐respondent, and it is, in fact, encouraged that you do not. With an unreasonable behaviour petition, the particulars will usually run to 3 or 4 paragraphs and should set out the first incident, the worst and the last. At the end of the petition is a prayer for the relief sought. This usually includes the petitioner’s claims for financial relief and, it is necessary for all the claims to be included here even though it is unlikely that they will be pursued.
The person who issues the proceedings (the petitioner) will have control of the process. The other person (the respondent) has a limited role to play. It does not usually matter who issues the proceedings and it may be possible for you to agree between yourselves how you will share the court costs.
The petition is sent to the court with a form setting out the arrangements for the children. Sometimes this form is agreed upon between you before proceedings are issued. The arrangements are not binding to you and, if there is any dispute between you, not resolved in mediation, it is open to either of you to make an application under section 8 of the Children Act 1989 for orders for residence, contact, prohibited steps or specific issue orders.
Once the divorce petition, the statement of arrangements for the children, the original marriage certificate, the fee and the correct number of copies have been sent to the court, the petitioner receives a note of the court number, and the documents are served on the respondent by post. The respondent receives an acknowledgement of service form, which he/she needs to complete and return to the court.
The court will forward a copy of the acknowledgement of service form to the petitioner once it is received, and the petitioner will then complete a standard form affidavit in support of the petition. This, once sworn, is lodged together with a form requesting directions for trial. The papers at this stage are placed before a District Judge who will certify whether or not the decree can be granted. If it can, then the court will list a date for the pronouncement of the decree nisi and inform you of the date. It is not necessary for any attendance on the date of the decree nisi, and a few days after, a copy of the decree will be sent to you. Finally, six weeks and one day after the decree nisi, the petitioner can apply for the decree to be made absolute. This is done by way of form with the appropriate court fee. It is an administrative act and is usually sent back by the court within days of the application.
The financial matters tie in with the divorce. If you want your proposals to be incorporated in a consent order for the court the divorce must have reached the decree nisi stage. The court only has jurisdiction to make financial orders on or after decree nisi and they are usually brought into effect on decree absolute. With a pension sharing order, it is necessary for there to be a decree absolute.
There are other options. You may come across a decree of judicial separation. This can be obtained on the proof of the same five facts as divorce, but the decree of judicial separation does not end the marriage – it just states that you can live separate and apart from each other. It is sometimes used for religious reasons or where someone does not want a divorce, yet they want access to the financial relief claims available.
The marriage could also be annulled. Nullity petitions bring an end to the marriage, and the marriage can be treated as void or voidable. Financial relief is also open to the parties to nullity petitions.
If you do not intend to issue proceedings at this stage, then it is possible to incorporate your proposals into a Deed of Separation. As long as there has been full disclosure and you have received legal advice, it is likely that the court will uphold any agreement you record at the time when the divorce goes through if you are not married. Therefore, your proposals can also be incorporated into a Deed of Separation.
If you seek to dissolve a civil partnership, the process is the same as for divorce, but there are a few differences. First, an application, not a petition, starts the proceedings. Second, there is the conditional and final order as opposed to the decree nisi and decree absolute. Third, the ground is the same – the irretrievable breakdown of the partnership.
There are several websites that can help you with the process. It may be worth entering the “divorce process“ in the search engine of your computer. However, some of these sites do charge even just for the forms. It is possible to obtain the forms from the court office for free, and someone in the court office will sometimes check that the contents of the documents are accurate for you before the proceedings are issued.
MIAM (or Mediation Information and Assessment Meeting) is an individual pre-mediation session with one of our mediators, in which the disputants can discuss in more detail the issues that need to be resolved and decide if mediation is the right way forward. If mediation isn’t right, the mediator can help you explore other ways to resolve the issues.
The mediator will spend some time at your MIAM, ensuring you understand how this will impact your case and check out any concerns you have about what will happen next.