Family mediation is a process that couples can use to resolve their differences over financial provision and arrangements for children when they divorce. It’s supported by a government voucher scheme that can make it a cost-effective option for many couples.

As we explain below, while you don’t need to consult a solicitor if you decide to go down the mediation route, in many cases it’s advisable. Additional support from a specialist family solicitor at various stages in the process and when it comes to legally formalising any agreement you reach can be invaluable. Input from a family solicitor is particularly useful if there are complex assets or where one party has historically had very little to do with the family finances. In such cases that spouse may need specialist advice on the value of specific assets and how significant they may be in any future financial settlement.

How Do I Get A Divorce?

The procedure for getting a divorce is relatively uncomplicated. Since the advent of no-fault divorce in England and Wales in 2022 the ways one spouse can object to a divorce are limited to challenging the court’s jurisdiction or the validity of the marriage (extremely rare). Solicitors and mediators are therefore instructed principally to deal with issues around finances and child arrangements. At Brookman we are members of Resolution which means we are committed to helping you find constructive and non-confrontational ways to resolve areas of dispute.

If you decide to go to court to finalise your divorce you should bear in mind that it will cost you. A report in 2023 by the International Longevity Centre UK estimated that the average cost of a contested divorce is around £30,000. Added to this, there is a significant backlog in the family courts caused by a combination of factors, including:

  • The aftermath of the Covid years when cases were being disposed of in a severely reduced number
  • Increasingly complex child protection cases
  • A notable shortage of family judges to actually hear cases and make decisions

Against this backdrop delays of more than a year are not unusual when it comes to getting a court date. Delays like this increase the uncertainty and stress of the divorce for spouses and children alike.

Divorce And Alternatives To Court

Against this backdrop it’s not surprising that couples are increasingly drawn to alternatives to court when sorting out a divorce settlement. We’ve discussed alternative dispute methods like early neutral evaluation and arbitration before.

Mediation is another method of dispute resolution and one that is promoted by the government. Contrary to popular perception, while mediation sessions themselves don’t usually involve the presence of a solicitor, lawyers often play a crucial role in ensuring the effectiveness of the mediation process.

Is Mediation Right For You?

If mediation is appropriate in your case, then it is certainly something to consider. Bear in mind however that accredited mediators operate within a process that has limited scope.

For example, the mediator does not give you legal advice. Instead the mediator provides you and your spouse with general legal information in an even-handed, impartial way. A mediator won’t come down on one side or the other or give you any indication of how much you might expect to receive in a financial settlement.

It’s also worth highlighting that mediation is voluntary. You will usually need to attend a mediation information and assessment session (a MIAM) before applying to the courts for a decision on your divorce settlement. At this meeting the mediator will assess your suitability for mediation. If you and your spouse do not agree to mediate your differences and aren’t prepared to undertake to engage meaningfully in the mediation process neither of you can be forced into the process. Meaningful engagement includes agreeing to disclose all financial details and discussing child arrangements openly and constructively.

Finally a mediator will not agree to mediate in circumstances where there are allegations of domestic abuse or where other safeguarding issues are raised.

How will a solicitor help me in mediation?

The benefits of using a solicitor when you mediate include:

  • Before you start – a solicitor can prepare you for mediation by explaining what to expect. Spouses who have not been involved in family finances or who are less financially literate than the other can often benefit from a solicitor’s expertise in gathering financial information, pointing out what records you might be asked to produce and what you should expect to receive from your spouse.
  • During mediation – we find that it’s often helpful to follow up a mediation session with a solicitor to discuss what has been proposed in terms of any settlement. Unlike the mediator, your solicitor can give you clear advice on the fairness of any proposed settlement. All in all, a solicitor can be a useful touchstone to run proposals by – about splitting pensions for example or dividing other complex assets
  • End of mediation – you’ll need a solicitor to draw up a consent order. After a successful mediation the mediator will prepare a Memorandum of Association. This is an important document reflecting what you have agreed –

but it’s not legally enforceable. A solicitor will formalise what’s been agreed into an order that a judge can approve. This way arrangements about the sale of property, pension division, transfer of shares or other assets are placed on a legal footing and, if there are problems down the line what’s been agreed in mediation can be enforced by either side.

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