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A guide to divorce mediation

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First4Lawyers, July 09, 2018

When going through a divorce, especially if you are a parent, there is often a lot to sort out. From financial and living arrangements to childcare, there are a number of things that need to be agreed upon.

If you are struggling to come to an agreement on these, or if communication has broken down entirely, then mediation may be the solution. It can often allow you to resolve issues without going to court.

What is mediation?

Sometimes confused with relationship counselling, mediation is actually very different.

While both routes are paid-for services, relationship counselling tends to be about fixing matters or salvaging the relationship, whereas mediation happens once the relationship has ended and you have failed to reach agreement on the future.

Mediation is not there to sort out any relationship problems, if you wish to try and fix the relationship then relationship counselling will be more suitable.

Mediators cannot give advice, they are instead there as a referee (so to speak), so it’s a good idea to seek advice from your own solicitor both before and during mediation.

Mediators can give information to you both on your options and the law, and their training will help you identify and resolve issues without judgement.

Things that need to be settled such as finances after separation, property and child arrangements can be discussed in a constructive manner in front of an independent and neutral mediator. This gives you both a chance to have your say without it becoming too heated.

How does it work?

Mediation traditionally takes place over a series of sessions, usually lasting around an hour and a half each.

The sessions are normally held by one or two mediators, who help you and your spouse reach an agreement.

Another option is lawyer-assisted mediation where each of you also has your lawyers present for the sessions.

This will be more expensive as you are also paying for your lawyer’s time, but it may be the better option if there are difficult legal issues to resolve.

If you choose the mediator-only route, the mediator will meet you both separately before mediation begins, to make sure you are comfortable with the process.

They may do this over the phone, or in individual face-to-face meetings.

Once they are sure you both wish to proceed, the first mediation session will discuss the agenda and which issues need to be resolved.

You will then discuss those issues and gather together information with the help of your mediator.

The number of sessions you will need depends on how many issues there are, and how difficult they are to resolve.

On average, separation with mediation takes 110 days, compared to around 450 days for non-mediated separations.

Following agreement on the issues, your mediator will then set these agreements out in writing, known as a ‘Memorandum of Understanding’.

This can then be taken to your lawyer for advice, and where necessary to have any legal paperwork drawn up around them.

Often the ‘Memorandum of Understanding’ will be sent to the court as a court order, so that it can be made legally binding.

How much does mediation cost?

For many, going to court is a daunting prospect and a last resort. Mediation provides a safe environment where you can both discuss your issues in a constructive manner.

Not only does it help you reach an agreement, it also saves you money, as it's a far cheaper option than going to court. 

The government have recently started a promotion drive for mediation, largely due to it being a cost-saving option for couples. It also may be funded by the Legal Aid Agency, if you're eligible.  

In addition, mediation is often less confrontational than going to court, as your mediator is there to make sure that conversations stay on track and don’t get too heated. It allows you both to have your say, rather than have a court judgement passed down upon you.

However, mediation isn’t for everyone. If you do not feel that you can trust your spouse to be open and honest, or you feel them to be unreasonable or even dangerous, it may not be the option for you.

Speak to a solicitor to ensure you make the right choice.

How do I arrange mediation?

If you wish to proceed with mediation, first discuss it with your partner to see if they are willing to participate. It can only go ahead if you are both willing participants.

If your partner does not agree straight away, try not to push them, let them make a decision in their own time. 

Once you are both agreed, do your research. Find the best mediators in your area, and encourage your partner to research also so that you can find a mediator that you both agree on.

What if it doesn’t work?

If you attend mediation and find you still cannot reach an agreement, then your divorce will have to proceed to court.

Your mediator will provide you with a C100 form, to indicate you have attended mediation. This form will be needed if you wish to apply to the court for a court order.

Should I still involve a solicitor?

The mediator can give you legal information, but they cannot provide you with legal advice. It is therefore useful to gain independent legal advice, on both sides.

A lawyer will be able to advise you on a number of factors, such as what you need to think about before and during mediation, and what you need to provide (i.e. financial information).

They will also be able to tell you whether your proposals will work in practice, whether you have enough components for your divorce settlement, and even whether the judgement is fair.

If you need advice on mediation, get in touch for a free and confidential chat to discuss your requirements.

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