You can’t be forced to mediate when you are getting divorced. The consensus is that for mediation to be effective, couples should sign up to the mediation process voluntarily. In family mediation, decisions about children and finances are taken by mutual agreement – unlikely if one party has been forced into mediation. Nevertheless, there are some benefits to divorce mediation – indeed the government encourages and even incentivises couples to mediate.
We’ll explain briefly what’s involved in family mediation below and how the government’s approach might affect you if you are getting divorced. We’ll also explain the role we play as family solicitors when couples reach a mediated agreement, and we highlight how we can help where mediation is unsuitable or where couples have attempted mediation but have failed to reach an agreement.
What Is Family Mediation?
Family mediation takes place independently of the family court system. Once a mediator has assessed your situation as suitable for mediation you and your spouse or partner sit down with the mediator and discuss in detail your family finances and arrangements for the children. The goal is for both of you to generate proposals for an overall agreement on these issues that can be put before a family court judge and formally approved.
During the mediation process, you are required to make full disclosure of your financial position in an Open Financial Settlement (OFS) in much the same way as you would if you were to ask the family courts to rule on a financial settlement and you had to complete a Form E. If you have children you will discuss arrangements in detail with the mediator and develop a Parenting Plan.
If you and your spouse reach agreement in mediation your proposals are set out in a Memorandum of Understanding (MoU).
Mediation has a much greater chance of success if the parties come to it voluntarily, engage in discussions transparently and in general adopt an attitude of cooperation. In our experience, mediation is less likely to result in agreement where couples have no desire to maintain any kind of constructive relationship in the future, where one party feels pressurised into mediation or where the breakdown of the relationship is particularly acrimonious.
What Does The Law Say About Mediation?
The government encourages couples going through divorce to try family mediation. From a public policy perspective mediation is regarded as a constructive way to resolve financial and child arrangements without reliance on the overburdened family court system. As a result, if you wish to use the courts to resolve your differences you are first required to attend a Mediation Information and Assessment Meeting (MIAM) where an accredited mediator will assess your suitability for mediation and explain how it works. In some cases, instances of domestic abuse for example, you don’t have to attend a MIAM.
If you decide to proceed with mediation and there are issues around children to discuss you will normally be entitled to avail of the government’s mediation voucher scheme which entitles you to £500 toward the cost of mediating with an accredited family mediator. Government support for family mediation was highlighted in 2023 when it announced plans to force couples to try mediation in all ‘suitable’ cases. The proposals seem at odds with the principle that it is a voluntary process.
Do I Need A Solicitor If I Mediate?
Often you’ll need to involve a solicitor in conjunction with your mediation. For example:
- Prior to considering mediation, you may wish to more fully understand your legal position and what the possible outcomes might be from your divorce.
- If you reach an MoU through mediation your mediator will usually advise you and your spouse to engage solicitors to assess the proposals and draft a consent order reflecting the terms of agreement that can be approved by eth family court. This ensures your agreement is legally enforceable and that future financial claims against each other are closed off.
- Where you attend a MIAM and the mediator advises that mediation is not suitable in your case you should seek advice from an experienced family solicitor.
- During mediation you may wish to seek advice from a solicitor on proposals that have been made. This is particularly the case where complex financial assets are being discussed such as investments and pensions.
- Where mediation breaks down after a number of sessions it’s important you protect your position by getting legal advice from a family solicitor.
We regularly advise couples who are considering family mediation. With our expertise in divorce law we can provide practical guidance on what a financial order might look like if you asked a judge to decide matters and what arrangements might be put in place for your children. This is often a valuable starting point for your attendance at mediation.