The Mediation Process

Family - The EMS Commercial model

Mediation is an effective, efficient, and economic voluntary process which helps to deliver resolution in separation and divorce cases.

The key to mediation is that the parties arrive at their own solution with the guidance and assistance of the Mediator. The Mediator is neither a judge nor an arbitrator and does not adjudicate or hand down a decision in relation to a dispute. Rather, a settlement is reached by allowing parties in dispute to clarify and explore issues in a non-adversarial channel. It is the neutral Mediator’s expertise and skills which facilitate the possibility of settlement.

Confidentiality before, during and, as appropriate, after the process is central to the principles of mediation. A process that works Without Prejudice and incorporates flexibility, mediation offers parties a means of achieving agreement without public or future disclosure of information. Confidentiality of all discussions and exchanges during the mediation process is legally binding except as otherwise agreed by the parties.

Family Mediation focuses on finding agreed resolution for the parents and children of a marriage or relationship. The mediation helps the couple to agree a parenting plan for the children, to divide the assets, to agree on future financial issues and helps the couple to have a working relationship which, if they have children, they will need until the children are adult.

Family-Commercial model

With the increasing wealth in Ireland and the complexity of clients' assets, EMS has devised a model of family mediation whereby the Mediator work not only closely with the parties but also with their Solicitors and other relevant advisors. It is a structured model that aims to deal in a business like way with the complexities of assets, pensions, companies, partnerships and numbers of properties.

EMS Mediators will work in a collaborative way with Solicitors and other advisors to help the parties through complex structures and negotiations. EMS has access to financial, pension and other advisors if the parties hae a requirement for this service.

EMS Mediators will work collaboratively with counsellors and therapists of the parties and the children as required.

Advisors

EMS recognises the value to the clients and the process of working collaboratively with the clients' Solicitors and other advisors. Advisors are welcome in the mediation sessions and are encouraged to have contact with the Mediator during the course of the mediation, which may take many months.

For more information on family disputes see books in Resources

Stage 1: Commencement of Family mediation

Either the Solicitor or one party refers the matter to mediation i.e. contacts Karen Erwin (EMS)
EMS contact the other party to discuss the possibility of mediation
If both parties agree to mediate the process moves to stage 2. a mediation agreement is signed which governs the process

Stage 2: Appointment of Mediator

The parties agree on a Mediator
A date, time and venue is fixed for pre mediation meetings to take place. These are held separately with each party and are to explain the process and to answer any queries.
The Mediator drafts and gives to the parties the draft Agreement to Mediate and deals with any queries.

Stage 3: Preparation for Mediation

The parties may start preparing a list of their assets and liabilities. They will also prepare details of their income and expenditure for the past three years and a budget for future income and expenditure.
The parties may contact the Mediator to resolve any outsatnding queries.
The parties must seek advice from their Solicitor as to their rights if the case went to Court.
They may also wish to take advice from their financial and pension advisors.
The parties may want to consult a therapist or counsellor themselves and may wish the children to do so as well.

Stage 4: Commencement of Mediation

The mediation starts usually with the Mediator explaining again the procedure to both parties in joint session and getting each person present in the room to sign the Agreement to Mediate.
In the same joint session the parties have the opportunity to make a statement of their concerns.
The parties usually stay in joint session but the Mediator may wish to speak to the parties separately at times during the mediaton.
Everything said in these private sessions is confidential and can only be revealed to the other party if there is express agreement.
The Mediator, depending on the circumstances, may continue with private sessions or may have joint sessions or may have sessions with the party's supporters or advisors. The flexibility of the process means there are no hard and fast rules on how resolution is arrived at.

Stage 5: Statutory Declaration of Means

When the parties have finalised their income, expenditure, assets and liabilities statement they will be incorporated into a draft Statutory Declaration as to means. The parties will take the draft to their Solicitors to discuss it and to understand the implications of swearing the document.
When the parties are happy that the Statutory Declaration accurately represents the position they will swear to the contents under Oath. Failure to swear the Statutory Declaration will bring the mediation to an end and there will be no negotiation on the assets until the Declaration is sworn.
If a party swears an incorrect or incomplete Statutory Declaration then any agreement arrived at in the mediation will be voidable by the other party.

Stage 6: Negotiations

Usually there are a number of meetings with the Mediator where the children are discussed and te assets identified. During these meetings, a number of interim agreements are reached - for example agreements on access, the childrens' holidays, family occasions, Christmas. There may also be interim agreements in relation to finance.
These agreements are written down in the mediation session and signed by both parties and the Mediator and are and are meant to be legally binding on the parties. Some of these agreements may carry over into the final agreement while others will be made redundant by circumstances.
At the beginning of the next mediation session the agreement reached will be gone through and each party has the opportunity to comment on them.
The mediation is to help the parties to come to a parenting plan to deal with the children's activities. It will typically deal with custody, residence, access and other visitation rights. It will deal with holidays and special occasions; with educaton and extracurricular activities; with health issues; with other relevant issues such as driving, alcohol, smoking, parties depending on the ages of the children.
Agreements about the division of their assets and the income will have to be reached and the parties are encouraged to consult their Solicitors and financial advisors.
Properties and / or businesses will have to be valued as will pension entitlements - if the parties can agree the valuer this saves time and money but if they cannot agree or if they wish separate advisors then two valuers will need to be instructed. Where possible the same instructions should be given to each.
If appropriate, these advisors may come into a mediation session.

Stage 7: Agreement

On reaching agreement, the terms are written down and the parties take the draft to their Solicitors and, if desierd, to their financial advisors. At this point the agreement is in draft form and is not legally binding on the parties. The Solicitors review the agreement to ensure that it covers all of the aspects that their clients need in the agreement and they advise whether they believe the agreement come to by the parties will be acceptable to the Court in any subsequent divorce proceedings.
The role of the Solicitor at this point is not to try to have the agreement arrived at renegotiated but to advise on its legal implications, understanding that the terms have been negotiated in the mediation and is what the parties want to happen.
If the Solicitors and the parties are happy with the agreement they come back into the mediation and the agreement is signed by the parties and by the Mediator and becomes legally binding.
If agreement is not reached then there may be a joint session of the parties where the Mediator sets out issues where agreement has and has not been reached.

Stage 8: Moving on from Mediation

If the parties wish, EMS can help to oversee the Settlement Agreement or can attend a review meeting.
EMS returns the documents to the parties, retaining the original agreement – ensuring that the parties each have a copy of it.
None of the people connected with the mediation may reveal any confidential information from the mediation.
The parties and their advisors are asked to complete feedback forms on the performances of EMS and the mediator.
If the parties wish to apply for a divorce some years after the mediation, they may come back into mediation either to confirm and re-sign te mediation agreement or to vary the terms of it to reflect a change in the assets.