The majority of Family Solicitors will advise their clients that it is usually in their best interests to resolve their case outside of the Court system. A change in the law means that there is now a greater emphasis on the options available to resolve disputes outside of the Court system and one of these options is known as mediation.
There is a common misconception that where there is a dispute concerning the arrangements for children or concerning a financial settlement, one party can merely take the other to Court straight away. Since the change in the law, in most cases people cannot merely start Court proceedings in relation to family issues unless they have firstly considered mediation. This is a process whereby both parties to the family dispute meet with an independent person known as the Mediator to see whether an agreement can be reached without the need for the Courts to become involved.
If you are seeking time with your children or you want to sort out your finances with your ex-partner then your Solicitor will explain that if these matters cannot be agreed between the two of you then the Solicitor should usually make a referral to mediation (see below for examples of when a Solicitor would not refer the case to mediation). Your Solicitor will send the basic details of you and your ex-partner to the Mediator and he or she will contact your ex-partner to see whether they would agree to sit with the Mediator for about half an hour purely to learn about mediation. If your ex-partner agrees to do that then they might be asked whether they would like to go to that session alone or whether they would agree to have a joint meeting with you.
If your ex-partner goes to the session alone then the Mediator will talk them through the mediation process and will explain what mediation can and cannot do for them. At the end of that session (which is usually free of charge) your ex-partner will decide whether they think mediation is something that could potentially help to resolve the dispute. If they agree to try mediation then you will be invited to a similar meeting where you will be advised of the pros and cons of mediation and you can then decide whether you think it is something that could help. Sometimes the process works the other way around and the Mediator will ask you to come in first and you can then decide whether mediation is something that you feel would be suitable for your case.
In the event that one or both of you decides that mediation is not suitable for you then the Mediator will provide a signed document which then allows you to go ahead and commence Court proceedings should you wish to do so. You will be asked to attach this document to your application to prove to the Court that you have considered mediation as an option.
If both of you agree that mediation could help then a session will be arranged that you both will need to attend. Usually you are asked to sit in the same room as your ex-partner so that you can have a round table discussion but it at some mediation offices is possible to ask for different rooms if you would feel particularly uncomfortable with that.
Usually, more than one session is required to resolve matters. The average is approximately 3 or 4 sessions. Either party can end the mediation at any time if they feel that it is not working for them. The Mediator also has the option to call the process to an end if they feel that the case is not suitable.
The Mediator is not there to act as a Judge and he or she will not impose any decision on either of you at the conclusion of the process. The Mediator’s role is to help both of you to have a frank and meaningful discussion with a view to an agreement being reached. The Mediator is not there to take sides and they will remain impartial throughout. One thing that you should be aware of is that the Mediator will not be able to offer you any legal advice. So, for example, if you have gone to mediation to try to resolve your financial arrangements and a financial offer is made by your ex-partner, the Mediator cannot advise you about whether you might receive a more favourable settlement if you went to Court. This is why it is sensible to retain a Solicitor throughout the process and if an offer is made at mediation you can always say that you would like to discuss that offer with your Solicitor before deciding whether to accept or reject it.
There are some pros and cons to mediation which can be outlined as follows:
Pros of mediation:
You retain control of the process
As above, the Mediator is merely there to manage the situation, not to impose anything on either of you. This means that the two of you will be in control of the timescales and the ultimate outcome will be something that the two of you have agreed upon (not something that has been imposed by a Judge who will usually know very little about your situation). Because you are in control, there can be greater flexibility in relation to the outcome. If your case concerns children, you will know what will work for your particular family and an agreement can be tailored around that. If your case concerns financial matters, you will know what you can both reasonably afford and what is fair in your particular circumstances and your agreement can reflect that as opposed to an order being imposed that might not really be suitable for either of you.
To take a case to Court you will almost certainly have to pay a Court fee as well as Solicitor’s fees. Even in cases that are not particularly complex, the legal costs of taking a case through the Courts is extremely likely to run into thousands of pounds. In the Court arena there are often orders made at the outset of the case for experts to become involved for things such as drug and alcohol testing, valuations of property and specialist reports. These all cost money and have to be paid for if a Judge orders that they should be prepared. In the mediation process, you are in control and you can decide whether these things are required.
There is a belief among some people that if you take a case to Court you merely send in an application, have one Court hearing and that is the end of the matter. In reality, there are usually a minimum of 2 court hearings for each case and particularly in cases concerning children there can several hearings before the case comes to an end. The average timescale for resolving a financial case through the Courts is about 6 months. Mediation can often be concluded in a much shorter timescale.
Improving the relationship between the parties
Sometimes when people separate they have very little direct contact with one another and their animosity towards their ex-partner can become entrenched by well wishing family and friends who speak negatively about their ex-partner. Similarly, Solicitors’ correspondence can often have a cold, unemotional tone to it which has the effect of pushing the parties even further apart. Sitting two people in a room with an independent party usually forces them into applying normal standards of politeness towards one another and as the mediation progress this can become more natural to the point that they feel that they can communicate without any unnecessary acrimony.
Cons of mediation
The outcome is not legally binding
If an agreement is reached at mediation then the Mediator will prepare something known as a Memorandum of Understanding. This document will record the outcome of the case and could set out for example what you propose to do with your finances or it could set out a schedule of arrangements for you both to spend time with the children. If your case concerned financial matters then your agreement should be shown to your Solicitor and they will prepare a document known as a “Consent Order” to make the agreement binding. Either party can withdraw from the agreement at any time before the Consent Order has been signed by a Judge.
If the case concerned children and one party does not abide by the arrangements listed in the Memorandum of Understanding then there is very little that can be done other than for the other party to make an application to Court. You cannot refer to the Memorandum of Understanding within the Court proceedings because anything said or done within the mediation process was done on a without prejudice basis meaning that apart from disclosure of figures for a financial case, nothing else can be referred to in Court.
Imbalance of power
Some people worry about going to mediation with their ex-partner because they think that they will be belittled and overpowered by them. For example, a case might involve a divorcing couple including a wife who has never worked and has stayed at home to raise the children and a husband who is the Managing Director of a large company and has every ability to drive a hard bargain and negotiate an outcome that is favourable to him. Whilst Mediators are trained to deal with power imbalances, some people might be fearful that they will end up agreeing to something that does not suit them purely because of the persuasive powers of their ex-partner.
Lack of proper disclosure
The Mediator has no power to force you both to fully disclose your respective financial positions in the same way that a Court does. Whilst the Mediator will remind you that a fair agreement cannot be achieved unless you fully and frankly disclose your assets, they will not conduct a forensic investigation of your respective financial positions in the same way that a Solicitor would as part of Court proceedings. If one or both parties are going to secretive about their true net worth then Court proceedings will probably be unavoidable.
When is mediation not suitable?
Mediation works in a lot of cases but it is not suitable for everyone. Examples of when it is not suitable include:
Where there has been domestic violence and/or child abuse.
Where there is a real risk of harm to a child.
Where there is some urgency because for example a child may be removed from the UK.
Where significant evidence may be lost if there is a delay in taking the matter to Court.
Where there might be a miscarriage of justice if the case is not taken to Court straight away.
If you are likely to suffer unreasonable hardship if the case is not taken to Court straight away.
If there is a risk that proceedings would be started in another country and that country would then have jurisdiction over the dispute unless proceedings were issued in England and Wales straight away.
If you do not know where your ex partner lives.
If there is not a mediation service within a 15 mile radius.
If your ex-partner lives outside of England and Wales.
If you or your ex partner have a disability that would prevent you from attending.
If your dispute is about financial issues and either you or your partner are bankrupt.
If the Mediator decides that mediation is not suitable for any other reason.
Contact our Mediation Solicitors in Birmingham
If you would be interested in attending at mediation to try to resolve a dispute and you would like us to make a referral for you on a fixed fee basis then please get in touch with a member of our Family Team by calling us on 01212482850 or contact us by using our online enquiry form.