Mediators and solicitors

• A mediator may provide information about the broad principles of law relevant in a situation. This information can be offered at individual appointments or to people jointly and is presented in language that can be easily understood. This information can help in considering options about what might be possible or about other sources of help that may be available.
• Helped by the mediator discussions and negotiations take place directly between the parties and not between solicitors. This results in much reduced costs and a less adversarial approach to reaching decisions. A mediator cannot give legal advice because this would jeopardise the impartiality of the mediator.
• A solicitor gives legal advice but can only represent the interests of one client. They can advise their client before, during and after mediation.
• Decisions and joint proposals reached in mediation are drawn up in a document at the conclusion of mediation but this is not legally binding. The document can be used by the solicitors to produce a legally binding agreement if required.
• Many couples mediating only about child issues reach agreement without looking for legal advice in addition.
• Mediation clients making decisions on financial issues are always recommended to have legal advice and to proceed to a legally binding agreement so that matters can be finalised.

Mediation and the Statutory Charge

Public Funding from the Legal Service Commission for mediation is available to those financially eligible. An assessment is made at a clients first appointment with their mediator. Unlike public funding for legal representation, however, there is no Statutory Charge payable, which means that a client is never liable to repay any mediation costs to the Commission. An eligible client is also able to have free legal advice from their solicitor to support them during mediation and to draw up the proposals as a legally binding document. This is also free of any Statutory Charge.
This is a real financial incentive for people to mediate and not to waste much needed money on expensive legal fees or to worry about incurring a debt which has to be repaid in the future with interest.

Confidentiality and legal privilege

The discussions that take place in mediation are confidential and in addition cannot be referred to in any court proceedings about the same issues. This protection helps people to discuss matters creatively and positively and explore different solutions freely before deciding what is best. Even then the outcome of mediation remains confidential unless or until it is converted into a legally binding agreement after legal advice has been obtained.

However, if concerns are raised about the safety of a person, particularly a child, the mediator must override the general requirement of confidentiality.