Mediation and why court is rarely the answer

Family breakdown is an emotional and stressful time for all involved. These emotions are often heightened by the prospect of bitter court proceedings, which are costly in terms of money, time and uncertain outcome.

These additional pressures and anxieties are the last thing that anyone needs at this difficult time, which is why many people are now turning to mediation in an attempt to resolve the issues which arise during the breakdown of a relationship.

Mediation is generally a quicker and more cost effective route to resolving disputes and aims to make the process less traumatic for any children involved. In the mediation process you also retain control over the outcome of your dispute, whether it relates to children, financial matters or both. This differs from the court process, where a Judge makes a final decision.

Nobody is saying that mediation is the easy option; discussing and possibly compromising on sensitive issues with someone you have previously been in a relationship with can be emotionally draining. But by attending mediation you and the other party involved make your own decisions about it.

Reaching an understanding

A trained and experienced family mediator can help you through the process and facilitate you reaching an understanding with your former partner/spouse. The mediator has to be impartial and, to ensure that this remains the case, he or she cannot give advice, only information. Therefore you may wish to retain the services of a solicitor to advise you alongside the mediation process. It can often be a good idea to obtain initial advice from a family solicitor so that you are able to go to mediation equipped with the knowledge about potential outcomes and things you need to be aware of.

Cases involving domestic violence or child protection issues may render mediation inappropriate. There are however other options, for example ‘shuttle mediation’ whereby you and the other party do not have to sit in the same room. Instead, your mediator will ‘shuttle’ between the two of you to facilitate negotiations.

Another key issue for mediation is financial disclosure. If one party is unwilling to provide full and frank information about their finances then mediation is unlikely to be suitable.

Confidentiality

Matters discussed at mediation are confidential and your mediator cannot pass on information without the consent of all parties. Any offers or negotiation attempts cannot be used in court proceedings later down the line if mediation breaks down.

Factual information disclosed relating to, for example, income or property can however be disclosed in later court proceedings if required. If your mediator discovers that you are or someone else has been hurt or is at risk of harm them they will immediately stop the process and may contact the police or social services.

Mediation is an effective tool in resolving family disputes, if used correctly. In the future the government is likely to continue to promote the use of family mediation as a preferred alternative to court proceedings.

Advantages and disadvantages of mediation

Advantages Disadvantages
The process is generally cheaper than going to court. A final outcome may not be reached. Mediation is not binding and either party can disengage at any point.
The parties’ emotional issues and needs are a key part of the process. The parties’ emotions may prevent them from reaching an agreement.
The process is bespoke to each couple and fits around their life commitments. The mediation process can be slow or stall if one party does not engage fully.
The parties can learn skills during mediation which can help with future communication. One party can have an unreasonable or extreme stance which prevents an agreement being reached.
The parties are in control of the process, both in terms of the speed/frequency of mediation and the issues to be discussed.

Important final steps after mediation

It is crucial that any financial agreement reached in mediation is formally recorded in a legal format, known as a ‘consent order’ and approved by the family court. It is only once an agreement has been approved by the family court that it is binding on both parties and enforceable. A family solicitor can draft a consent order for you and advise you about the implications of the agreement you have reached.

Your spouse will need to obtain their own advice about the agreement as a solicitor cannot advise both of you together. An agreement reached in mediation is subject to both parties obtaining independent legal advice on the terms of the agreement.

Mediation is an effective tool in resolving family disputes, if used correctly. In the future the government is likely to continue to promote the use of family mediation as a preferred alternative to court proceedings.

The Lester Aldridge family team deal with these and other issues on a regular basis.

lester-aldridge-logoIf you would like to discuss any aspect of divorce, separation, arrangements for your children or wish to protect your assets prior to getting married, contact the family team on 01202 786161 or email [email protected].

Lester Aldridge LLP

About Lester Aldridge LLP

Lester Aldridge LLP is a nationally recognised law firm with offices in London, Bournemouth and Southampton. The family team are leaders in their field. Jane, Jo and Rosie are specialist family solicitors with a wealth of experience in all areas of family law from divorce to children, prenuptial agreements to the settlement of financial disputes and everything in between. These women are feisty when they need to be. But their approach is designed to reduce conflict in order to ensure the best possible outcome. They recognise that family issues can be extremely emotional and they offer access to specialist advice delivered in a friendly, approachable and understandable way designed to guide you from start to finish. If you would like an informal, no-obligation chat with Jane, Jo or Rosie please telephone 03300 539754.