- Non – Binding Memorandum of Understanding in Family Mediation
Children agreements don’t have to be binding and because families change, such arrangements can always be changed in future to meet circumstances as they arise.
Financial agreements made in multi session family mediation are made without lawyers and are not binding under protocols and Codes of Practice established by the Family Mediation Council or FMC. A professional family mediator will have completed a portfolio of work and achieved the coveted Gold Standard Accreditation by the FMC – FMCA. They will not endanger their registration or professional reputation by facilitating binding financial settlements for clients and are barred from drafting a binding Consent Order or Deed in connection with finances.
- Binding Consent Order or Tomlin Order in Civil Mediation
At the end of a civil mediation clients or their lawyers draft a Binding Tomlin Order to conclude any civil court proceedings or a binding agreement if there is no litigation, and the mediator may help. Mediators who have completed the civil mediation training will be registered with the Civil Mediation Council (CMC) and work to a different Code of Practice and protocols from family mediators. Under the CMC code it is expected that the outcomes of mediation will be binding. Lawyers often attend such mediations which typically take a day with clients signing a binding agreement on the day.
- Hybrid Mediation
There is a cross-over area between family and civil mediation where great care must be taken. It is worth remembering there are reasons family mediation outcomes are not binding until after there has been an opportunity for reflection, legal advice and ‘cooling off.’ Couples are not always equal partnerships freely entering into agreements. There may be abuse, issues of control, learned helplessness and violence. A civil mediator will not normally be trained to identify such matters and address power or information imbalances, which under their code is not their job. A family mediator, often from a family law background, will be accustomed to giving clients substantial neutral legal information. They may have couples who want a binding agreement in a day. They are well placed to assist with this up to a point, within the constraints and protocols of their mediation back-ground. They may use their training as a family and a civil mediator, as they should be both. Then they are able to navigate both systems of mediation and differing codes of practice knowledgably and with confidence.
- One Day Lawyer Assisted (Family) Mediation – Binding
Focus Mediation has developed this way of working, which essentially uses the civil mediation agreement but incorporates skills from family mediation too. It is vital to be clear about precisely how this works:
| Similarities and Differences | Family Mediation | One Day Lawyer Assisted Family Mediation- civil style |
| Impartiality | Yes | Yes |
| Voluntary | Yes | Yes |
| Gives legal information | Yes | No as lawyers there |
| Confidentiality as against rest of world | Yes | Yes |
| Holding confidences between clients | No all open and no secrets held save confidential address or contact details | Yes can hold confidences so far as offers and options are concerned |
| Sharing of factual information e.g. open financial | Must be shared | Must be shared |
| Lawyers present | No | Yes |
| Timing | Series of shorter sessions over weeks/months | Usually one Day mediation after financial disclosure completed |
| You may start with family style mediation to complete financial disclosure or resolve children matters, then swap to ODLAM | First | Second, to complete mediation |
| Type of mediation | Family mediator should be accredited by the Family Mediation Council – FMCA | Civil mediator should be registered with Civil Mediation Council – CMC |
| Nature of Outcome | Summarised in non-binding Memo of Understanding | Set out in binding Consent Order or Deed drawn up by lawyers on the day |
| Sessions | Usually in one room without lawyers or anyone else; can be apart | Mostly if not entirely in separate rooms with mediator going between |
| Bring a friend | Rarely | Yes |
| Plenary Session – where parties and their lawyers meet and set out their positions and express intentions of good faith at the start of mediation | No | Yes – but optional not compulsory |
| Those present must have authority to settle | Yes | Yes |
| Able to end or avoid court proceedings | Yes | Yes |
In summary, the resolution of disputes requires skill, training and experience. It is important to ensure mediators have the requisite skills and training and that the best method of mediating is used for any dispute, not just used because that is the way that mediator is trained, insured and able to work. It is helpful to use a mediator with a broad knowledge and experience of Family Law especially for a financial divorce case, which is why at Focus Mediation we only use lawyer mediators for family finance cases because they can help you better. For non-family disputes Focus Mediation has a range of mediators from a host of different professional backgrounds so we can offer appropriately qualified and experienced mediators for most situations where a dispute arises.
Call us on 01908 231132 or Email: info@focus-mediation.co.uk for further information or to book a Mediation Information & Assessment Meeting (MIAM) (10 Locations – Milton Keynes, Bedford, Hemel Hempstead, London, Northampton, Oxford, Potters Bar, St Albans, Harrow and Watford). Read more about family mediation (including our client testimonials) at www.focus-mediation.co.uk