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Conduct of mediation


6.1          All assessments for suitability for mediation must be conducted at meetings on a face-to-face basis. Assessment meetings can be conducted jointly or separately depending on client preference, but must include an individual element with each participant to allow mediators to undertake domestic abuse screening.

6.2          Mediators must manage the mediation process. They should consult the participants on management decisions such as the ordering of issues and the agenda for each mediation session but must not relinquish control of the process to the participants.

6.3          Throughout the mediation mediators must keep the possibility of reconciliation of the participants under review.

6.4          Participants must be clearly advised at the outset of the nature and purpose of mediation and how it differs from other services such as marriage or relationship counselling, therapy or legal representation.

6.5          Participants must be informed of all the general principles set out in Section 5 above, including the nature and limits of the principles of confidentiality and privilege and mediators’ special concern for the welfare of any children of the family.

6.6          Participants must be informed of the extent of any disclosure which will be required in cases relating to their property and finances.

6.7          Each participant must be supplied with written information covering the main points in this Code and given the opportunity to ask questions about it.

6.8          Mediators must ensure that the participants agree the terms and conditions regulating the mediation before dealing with the substantive issues.  This must be in the form of a written agreement which reflects the main principles of this Code.  The agreement must also set out the client fees.

6.9          Participants must be requested to notify any legal advisors acting for them of the appointment of a mediator.

6.10        Where during a privately funded mediation, mediators become aware that one or more of the participants may qualify for public funding, they must inform the client of this and, if they do not undertake publicly funded work, of the potential services of a mediation practice with an LSC contract.

6.11        Mediators must assist participants to define the issues, identify areas of agreement, explore the options and seek to reach agreement upon them.

6.12        Mediators must seek to ensure that participants reach their decision upon sufficient information and knowledge.  They must inform participants of the need to give full and frank disclosure of all material relevant to the issues being mediated and assist them where necessary in identifying the relevant information and supporting documentation.

6.13        Mediators must ensure each participant is given the opportunity to make enquiries about information disclosed by any other participant and to seek further information and documentation when required.  They must promote the participants’ equal understanding of such information before any final agreement is reached.

6.14        Mediators must make it clear that they do not themselves make further enquiries to verify the information provided by any participant, that each participant may seek independent legal advice as to the adequacy of the information disclosed before reaching a decision; that in any court proceedings a sworn affidavit, written statement or oral evidence may be required and that authoritative calculations of liability under the Child Support Act 1991 can only be made by the Child Support Agency or may replacement organisation established under the Child Maintenance and Other Payments Act 2008..

6.15        Mediators must inform participants of the advantages of seeking independent legal or other appropriate advice whenever this appears desirable during the course of the mediation.  They must advise participants that it is in their own interests to seek independent legal advice before reaching any final agreement and warn them of the risks and disadvantages if they do not do so.

6.16        Mediation meetings are commonly conducted without lawyers present.  However, solicitors or counsel acting for the participants may be invited to participate in the mediation process and in any communications if the participants agree and the mediator considers that it would be appropriate.

6.17        When appropriate and with the consent of both participants, arrangements may be made for the attendance of professional third parties other than lawyers, such as interpreters, accountants, actuaries, independent financial advisors, and other advisors.

6.18        When appropriate and with the consent of both parties, arrangements may be made for the attendance of third parties with an interest in the proceedings, such as new partners, parties with a legal or beneficial interest in property that is the subject of dispute, or other family members.

6.19        Mediators must seek to ensure that agreements reached by participants are fully informed and freely made.  Participants must have as good an understanding as is practicable of the consequences of their decisions for themselves, their children and other relevant family members.