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Three Things You Need To Know About Family Law Mediation

Divorce

Family law matters are often emotionally fraught.  It is ironic that many couples separate due to communication difficulties, only to be expected to be able to talk rationally and reasonably about financial and child-related matters after the relationship has completely broken down.

Fortunately, the process of mediation helps some couples reach decisions on major issues without having to face the stress and expense of court proceedings.  Facilitated by a trained mediator, mediation provides a safe environment and the support that divorcing or separating couples require to work through their issues in a calm, respectful way.

The English family law system is designed on the premise that, as far as possible, families should be given the support and resources to work out disputes between themselves.   Court orders should only be sought as a last resort, or if circumstances mean alternative dispute resolution methods are unsuitable.  An example of this is the presence of abuse or domestic violence.

Although the term mediation is regularly used by family lawyers, few people know what it involves.  Here are three key things you need to know if you are in the process of leaving your marriage, civil partnership or cohabiting relationship.

One – Although it is not compulsory to attend mediation, you must participate in a Mediation Information and Assessment Meeting (MIAM) before making an application to the court, unless you are exempted

Unlike some other common law countries, such as Australia, under English law, you do not have to prove that you and your spouse or partner have attempted mediation before you can proceed to court.  However, in most situations, you need to attend a Mediation Information and Assessment Meeting (MIAM) before you can make an application to the court to decide on the matter under dispute.

A MIAM is designed to help you decide whether your family law matter can be resolved through mediation rather than going to court.  At the meeting, a trained mediator will provide you with information about the mediation process, answer any questions you have, thereby providing you with the knowledge required to make an informed decision about whether the process is right for you.

If domestic violence or abuse has been a feature in your relationship, child services are involved out of concern for your children, there is a serious threat of child abduction, or your situation is covered by another statutory exemption, you will not be required to attend a MIAM.

Two – Mediation encourages you to be in control of resolving your family law dispute

In formal litigation proceedings, the judge runs the show.  They will make decisions, based on evidence provided by your solicitor, on the financial settlement, how arrangements for your children are sorted out and any other matters that may be in dispute.  Court proceedings, by their very nature, operate on a win/lose basis.

Mediation is the opposite.  A mediator is not there to tell you what to do.  Instead, they act as an impartial facilitator, allowing you and your partner/spouse to come up with creative solutions to resolve your dispute that will work for both of you in the long-term.

You maintain full control during the process and will be encouraged to move forward and find a resolution to issues, rather than assign blame.

The mediation process is generally swifter than litigation and usually far cheaper.  Proceedings are also private and confidential.  You can also choose to make any decisions reached in mediation legally binding.  This is done by having your family law solicitor consolidate any agreements reached into a consent order, which is then approved by a judge.

Three – Mediation can be used successfully in High-Net-Worth divorce

The media are always keen to report on high-net worth divorce cases in the courts as they often involve celebrities living extravagant lifestyles.  These types of stories sell papers.  What the media does not report on is the countless examples of wealthy couples who have resolved their financial settlement disputes amicably through mediation.

Mediation provides a way for such couples to work towards a win-win resolution and develop good communication methods they can draw on if they need to resolve certain matters in the future.

Collaborative law approach

An alternative to mediation is for parties to a divorce to consider a collaborative law approach.  Collaborative law involves a couple instructing a collaborative lawyer and entering into a Collaborative Participation Agreement.

Under this agreement, couples promise to negotiate in good faith.  Negotiations often take place face-to-face (a process known as a four-way meeting).  In addition, correspondence between solicitors is kept to a minimum.

Parties to the Collaborative Participation Agreement state that if they are unable to agree on matters and decide to issue court proceedings, they will dispense with the services of the collaborative solicitors and instruct new lawyers to take the case forward.  This helps focus the parties and their solicitors on finding “workable solutions.”[1]

Final words

At Hart Reade, all our family law solicitors are members of Resolution.  In addition, many of our team are collaborative lawyers.  Both these organisations advocate for using non-confrontational methods for resolving family law disputes, including mediation.

We can provide you with a wealth of information regarding mediation and how it can assist you with resolving your family law dispute.  To talk to any of the family law team, please call us on 01323 727 321.

Please note, this article does not constitute legal advice.

[1] Bull, A Hanna S, Putting Your Children First, P.C.B. 2016, 6, 253-259