New Year, New Start: The Perfect Time to Begin Mediation

It is claimed by some that January is the busiest month for family lawyers, when more people than ever seek a divorce, following family breakdown over Christmas. And if you find yourself seeking a divorce in January, then that is the perfect time to consider family law mediation as a means of sorting out arrangements for children and finances post-separation.

In fact, it is not at all clear that more people seek a divorce in January than at any other time of the year. However, the simple truth is that whenever a marriage breaks down is the perfect time to consider family law mediation as a means of sorting out children and financial arrangements.

And if your relationship has already broken down and there are still arrangements to be sorted out, why not make a New Year’s resolution to use family law mediation to sort out those arrangements?

But why should you use mediation? What arrangements need to be sorted out, and what is wrong with just going to court and sorting things out in the ‘normal way’?

What arrangements need to be sorted out post-separation?

If there are dependent children then the parents will need to sort out where they will live post-separation. This can be with just one parent, or a shared care arrangement, whereby the children share their time between their parents. And if the children are to live with just one parent then arrangements will need to be sorted out for them to have contact with the other parent.

There may also be other matters to be sorted out regarding the children, such as holiday arrangements and what schools they should attend.

In addition, arrangements will be sorted out as to the payment of child maintenance and school fees, if appropriate, including how much will be paid, and how often.

As to other financial arrangements, exactly what needs to be sorted out depends upon whether the parties were married (or in a civil partnership), or were simply cohabiting.

If the parties were married then all financial arrangements will need to be sorted out, including what is to happen to the former matrimonial home, how any other assets should be divided, and what should happen regarding pensions.

If the parties were not married there may still be property matters to resolve regarding any property that was jointly owned, or where it was owned by one party but the other party claims a share.

And if the unmarried couple have dependent children, then it may be necessary to make financial provision for the children, for example to ensure that they have somewhere suitable to live.

As will be seen, there can be a lot to sort out following separation or divorce!

The importance of resolving matters by agreement

It is absolutely vital that all of these arrangements are sorted out between the parties by agreement, if at all possible.

If they can’t be sorted out by agreement then it will obviously be necessary to have someone else sort them out for you. This will usually mean going to court, but this has serious disadvantages for all concerned, including:

1. Cost – Contested court proceedings are prohibitively expensive. It is far better to preserve precious assets for the family, rather than fritter them away on unnecessary legal costs.

2. Time – Contested court proceedings can take many months, and sometimes even years, to be dealt with, preventing the family from moving on with their lives.

3. Stress – Contested court proceedings can be extremely stressful for all involved.

4. Animosity – Contested court proceedings will often create or exacerbate animosity between the parties, to the great detriment of everyone involved, including any children.

5. Bad outcomes – Lastly, the court will impose a decision upon the parties that they may not agree with.

All of these disadvantages can be removed or reduced if arrangements can be sorted out by agreement.

A better way

It is all very well recommending that separated couples sort out arrangements for children and finances by agreement. But what if they try to do so, whether by speaking to one another directly or negotiating through solicitor, but they are unable to reach agreement?

This is where mediation comes in.

Often, all it needs for the parties to reach agreement is someone to help them in the process of negotiation. Someone who can steer them in the right direction, making sure that both parties approach the negotiation in a reasonable fashion, and that neither party seeks to force their views upon the other.

And that someone is a trained mediator.

So how exactly does mediation work?

What is family law mediation?

Family mediation is a process whereby the parties endeavour to sort out arrangements for children and/or finances, with the assistance of a family law mediator.

Whilst anyone can call themselves a mediator, you should choose one who has undergone professional mediation training, and has a recognised accreditation, for example from the Family Mediation Council.

The mediation process will normally consist of a number of meetings, over a period of several weeks, or a few months. Meetings will typically last about 90 minutes.

If the mediation relates to financial arrangements on divorce then, before the process can begin, the parties will be required to make full disclosure of their means so that everyone, including the mediator, knows what is involved, and can form a view as to what would be a reasonable settlement.

If the parties can reach agreement in mediation then a written memorandum of the agreement will be prepared by the mediator. If the agreement relates to divorce finances, then the agreement will need to be incorporated into a consent court order, so that it is both final and enforceable. The order can usually be obtained without the necessity of a court attendance.

And even if a full agreement cannot be reached, it will often be possible to agree some matters in mediation, thereby reducing the number of issues to be argued before the court.

There is a cost involved in mediation, but this is usually shared between the parties, and will almost certainly be considerably less than the cost of contested court proceedings. Legal aid may be available for mediation, subject to eligibility.

It is important to understand that the mediator cannot provide legal advice to the parties, even if the mediator is legally trained (many mediators are solicitors). The parties should therefore seek their own legal advice as they go through the mediation process (see also Solicitor Inclusive Mediation, mentioned below).

It is also important to understand that mediation is entirely voluntary. This therefore means that both parties will have to agree to go to mediation, before mediation can happen. No one can be forced into mediation, although if there are court proceedings the court may take a dim view of anyone who refuses to go to mediation without good reason, and can even impose costs penalties upon them.

It should also be noted that anyone wishing to make an application to a family court to sort out arrangements for children should first attend a Mediation Information and Assessment Meeting, or ‘MIAM’, unless they are exempt. The purpose of the MIAM is to explain how mediation works, and to assess whether the case is suitable for mediation.

Mediation is suitable for most separating couples, but there are cases in which it will not be suitable, in particular where there has been a history of domestic abuse.

Family Law Mediation works

In the autumn of 2019 the Family Mediation Council conducted a survey to find out whether family mediation works.

The survey involved 122 Family Mediation Council-registered family mediators, who had carried out mediation in 2161 cases over a six-month period. The issues being mediated comprised 46% children arrangements, 25% property and finance arrangements, and 29% all issues (i.e. arrangements for both children and finances).

The survey found that those who participated in mediation succeeded in reaching complete or partial agreement in over 70% of cases, with 50% of people reaching a complete, written agreement, and the remaining 20% reaching an agreement on some issues, or on all issues, but choosing for this not to be written down.

The survey also showed that where both of the people separating go and see a mediator for an initial meeting, three quarters choose to go on to mediate. This is despite the fact that many don’t know anything about mediation, or think their partner is so unreasonable that mediation will never work.

In short, mediation works, certainly in the majority of cases, and often in cases where it initially seems highly unlikely that it will work. Mediation should definitely be considered by all separating couples as a means of sorting out arrangements for children and finances, and January is the perfect time to begin mediation!

How we can help

Walker Family Law offer a range of mediation services, including Child Inclusive Mediation (to ensure that the voices of older children are heard and considered during the mediation process), Solicitor Inclusive Mediation (providing support and guidance to clients with legal representation throughout the mediation process), and Online Mediation, allowing clients to participate from the comfort of a location of their choice.

To find out more about how we can help you with our mediation services, see this page.