Mediation – An alternative way to divorce

According to a recent survey, as many as 25% of divorcing couples regret not using mediation or some other form of alternative dispute resolution (‘ADR’) to resolve matters at the end of their marriage. 40% wish that they had a friendlier relationship with their ex-spouse, be this for the good of future co-parenting or otherwise. 27% said that legal costs were the most difficult part of their divorce, and 26% had been largely concerned by the length of time proceedings took. The survey polled 1,000 divorced individuals. Mediation and ADR can, in the right case, help to alleviate some of the traditional problems mentioned by the survey participants, by being cheaper, less formal, and allowing the couple more control over the timescale for settlement. However, mediation and other ADR services are not as widely used as they could be.

There is a judicial push to encourage couples to mediate rather than bring their issues into court. This was highlighted by the President of the Family Division, Sir Andrew McFarlane, in his July ‘View’ statement. With regards to issues concerning children, the government has recently launched a scheme to help couples make use of mediation services to resolve their disputes. For a limited time (whilst supplies last) couples can claim £500 towards sessions with a mediator accredited by the Family Mediation Council. Couples will first have to pay for their own MIAM session (Mediation Information and Assessment Meeting, essentially an introductory session to help you decide if mediation is right for you) but can then get £500 off future sessions if they decide to embark on resolving the issue through mediation.

Family mediation, unlike mediation in civil law disputes, usually takes the form of the couple meeting with a mediator only, without any other third parties (e.g. lawyers) present. Over a series of sessions, the mediator attempts to get the couple to close the gap between their positions and reach a compromise. The trouble with this is that there is no legal advice involved on the day. Each participant should therefore be taking into account what they are legally entitled to (and how likely they are to get what they want if they went to court), and running any proposed agreement past a specialist divorce solicitor, before agreeing to a compromise deal.

Once agreed, it is advisable to have any deal reached drawn up into a written ‘consent order’ which will be submitted to court to be checked by a judge and formalised. This provides some certainty that the other party will not be able to issue proceedings and come after you for more than you had agreed. Often it is only at this stage that parties will instruct a solicitor and take legal advice, only to realise that they had vastly underestimated what they could and should have been aiming for. In these circumstances, people often resent the work they put into mediating, and/or try to amend the agreement (engendering distrust at a time when they’re trying to build new family units). It is therefore advisable to seek legal advice early on in your mediation journey. A good family law solicitor can take you through how the law works in a private consultation, and what a good deal might look like, leaving you to negotiate in a more informal environment (which may preserve relationships, involve fewer professional fees, and lead to a deal far faster than getting stuck in court delays) from a position of knowledge. Once you’ve reached an agreement in this way, assuming it is sound, the solicitors can then move seamlessly on to drawing this up into a court order.

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