The Children Act 1989 (as amended) is particularly significant. It prioritises the welfare of the child in any decision-making, a principle that is central to all family mediation discussions. In mediation parents can create their future co-parenting plan which will deal with issues like living arrangements, contact, holidays and special occasions, decision making and communication.

When looking at financial issues the main legislation is the Matrimonial Causes Act 1973 and in it, Section 25, lists the various factors that need to be considered. The first consideration must be given to the welfare of any minor child of the family (under 18). These Section 25 factors are also discussed as part of the mediation process. In mediation couples seek to achieve a fair financial settlement by discussing issues such as the division of their assets, where they are both going to live, pensions, debts and child and spousal maintenance.

The UK legal system now states that before applying to court for a divorce or a child arrangement order, most people are required to attend a Mediation Information and Assessment Meeting (MIAM). This meeting explains what mediation is and helps determine if it's suitable for their situation. There are some exceptions to this rule, such as cases involving domestic abuse or child protection issues.

During the court process the parties will also be asked to complete an FM5 form which informs the judge of what attempts have been made to try and reach an amicable resolution.

Confidentiality and legal privilege

A cornerstone of family mediation's legal framework is confidentiality. This means that anything said or discussed during mediation cannot be used as evidence in court later, with a few crucial exceptions. This principle, known as "without prejudice", encourages open and honest communication, as parties can explore solutions without fear that their statements will be held against them. This is a powerful tool that helps build trust and facilitates compromise.

However, this confidentiality isn't absolute. Mediators are legally obligated to disclose information if there are concerns about a child's safety or well-being, or if a serious crime is being planned.

Enforceability of agreements

Couples must also consider how to move from a mediated agreement to a final, legally enforceable agreement.

While the discussions and initial agreements in mediation are not legally enforceable on their own, they can be made so. Once an agreement is reached, it can be formalised into a consent order or a separation agreement. Both parties first have the opportunity of obtaining independent legal advice. A solicitor can then prepare the formal documentation or a specialist business who will normally do this for a fixed fee.

Once a court order has been prepared it is then submitted to the court.  Once the court approves the document, it becomes a legally binding order.

This two-step process, reaching a consensus through mediation and then formalising it legally, provides a flexible, private way to resolve disputes while ensuring the final outcome has the full weight of the law behind it. Understanding this legal pathway is crucial for anyone considering family mediation as a way to resolve their family issues.

If you would like to discuss how mediation might be able to help you or someone you know, book a free call on our website – www.familymediationandmentoring.co.uk or email us at hello@familymandm.co.uk

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