Calling Lawyers: Why Don’t Your Clients Give Private Family Mediation a Try?

It was a real pleasure to connect with so many practitioners at the Bar Council Delegation Family Law in Transition – Disputes Across Borders gathering at the Capital Club in September 2025. I had the opportunity to join a panel and speak on one of my favourite topics in family law practice: family mediation.

As we explored the long-standing tradition of non-court dispute resolution in the UAE, and the growing demand for private mediation in cross-border family matters, I couldn’t help but feel we were, for the most part, preaching to the converted.

But one lone voice cut through the room.

A candid, completely fair anxiety: “I do not see value in referring family disputes to private mediators in this region.”

That honesty stayed with me.

So this note is for the lawyers who do not routinely use private family mediation to limit court involvement, and who want to better understand how the process shields your client’s rights, position, and strategy.

Before dismissing mediation, pause and think about:

• your most demanding clients;

• your most complicated matters;

• the lasting emotional and financial impact of litigation on a family.

Then ask yourself:

Why don’t your clients give private family mediation a try?

It is a structured, confidential, professionally managed process. With the right (pair of) practitioner(s), mediation helps bring parties toward resolution - so you can focus on the legal work.

This is not an ideological pitch. It is a practical one.

And the concerns that most often hold practitioners back?

They are real - but (for the most part) manageable.

Four Common Concerns About Private Family Mediation (and some common approaches to help manage each one)

1. Lack of Disclosure

There is a misconception that mediation allows a party to conceal information. In fact, private mediation can produce more complete, full, frank and efficient disclosure than many cross-border court processes.

How the process manages this:

(a) Structured, staged disclosure Mediation follows agreed disclosure phases that are often more thorough and flexible, than court-driven requests that do not always give parties the opportunity to engage robustly with the disclosure produced.

(b) Mediator-led clarity. Experienced mediators identify gaps, flag inconsistencies, and ensure both parties understand their obligations. In this way, the parties are more engaged as they must take the lead in producing the disclosure (informed by their legal advisors).

(c) Written disclosure protocol Agreed at the outset, it can set the expectations for what is exchanged, when, and in what form - reducing the risk of surprises or delay.

2. Unreliable Disclosure

Even when documents are exchanged, accuracy matters. Mediation supports verification through:

(a) Jointly instructed financial experts. If appropriate, the neutral accountants,

valuers, or forensic specialists provide reliable summaries and spot anomalies.

(b) Reality-testing by the mediator. Income, lifestyle, spending, and liabilities are examined to highlight inconsistencies and help to reality test each parties’ underlying beliefs.

(c) Live document review. Documents can be reviewed in-session to clarify issues immediately - avoiding weeks of correspondence and litigation regarding the disclosure produced (often avoiding fees that are led by misunderstandings and/or strategic position for court proceedings).

3. Fishing Expeditions

No one wants mediation used as recon before litigation, least of all the mediators.

Proper safeguards prevent this:

(a) Mediators refusing to mediator. If there are concerns about signing the agreement to mediate terms, or signals that the party is using mediation as a tool to litigate, the mediator should refuse to mediate. It supports the credibility and confidence of clients in mediation.

(a) Without-prejudice privilege (WP). A signed agreement that discussions, proposals, and concessions are not admissible in court, and where WP is not recognised a non-disclosure agreement (NDA) with punitive clauses can be effective.

(b) Strict confidentiality. Parties commit not to rely on, share, or weaponise information discussed in mediation. Again, the NDA can be effective but where there are genuine concerns in this regard the use of shuttle meditation can be effective.

(c) Mediator gatekeeping. Requests for documents must be proportionate and relevant. Speculative demands are filtered out by the mediator, and concerns are usually raised by either party (informed by their legal advisors).

(d) Information-safeguarding protocols. Sensitive information, does not leave the room unless authorised; can be shared verbally only (“verbal-only disclosure”); can be protected by an NDA covering misuse; and, can include deterrent clauses (e.g., security held by a neutral third party for breach).

These tools prevent fishing, reassure parties, and protect legal strategy.

4. Prejudicing a Client’s Legal Position

Often the deepest concern:

“Will an exploratory offer undermine us if mediation fails?”

A well-run mediation actively prevents this.

(a) Shuttle mediation Exploratory offers can be reframed and delivered by the mediator—not attributed to the party unless agreed.

(b) Strict without-prejudice protections Settlement discussions are fully insulated from later proceedings.

(c) Caucusing (private sessions)Nothing leaves a private session without express permission. Ideas can be safely (and only verbally) tested.

(d) Separation of disclosure and negotiation Fact-finding is kept distinct from settlement brainstorming.

(e) Lawyer involvement at key points Nothing becomes binding without legal review and approval.

Critically: Sensitive Disclosure and Settlement Ideas Stay Inside the Room

Professional mediators use established, international techniques to ensure sensitive material:

• is never recorded in writing unless agreed;

• is shared verbally where appropriate;

• is automatically treated as without prejudice and subject to contract;

• remains ring-fenced unless both sides permit it to be formalised.

These are standard tools in global mediation practice - and powerful protections for your client’s legal position.

This is Not a Pitch. This is an Invitation.

An invitation to consider how - even marginally - painless that painful family matter could become.

Whether or not you attend the mediation yourself:

• the right mediator(s) can resolve issues, or

• at the very least significantly narrow them.

And sometimes narrowing the issues is the most efficient, humane, and strategically sound step you can take for your client.