Divorce Mediation – A Simple Guide
This guide to divorce mediation explains what mediation is, how it works, when it is necessary and how a divorce lawyer can assist you. It also looks at the differences between mediation and another valuable approach to the resolution of issues arising from the breakdown of a relationship, Collaborative Law.
What is divorce mediation?
Divorce mediation is a way for people who are separating or getting divorced to reach agreement on the matters in dispute, such as arrangements for children, the family finances, and dividing property.
Divorce mediation is not relationship counselling and your mediator will focus on various issues, arising from your decision to end your relationship.
How does divorce mediation work?
There a number of different models and methods for mediation, but the basic principles are the same:
- A trained, impartial mediator meets with you and your former partner to help you to discuss and resolve your differences.
- You will meet your mediator alone for an initial session, so you can discuss the issues that are important to you. The mediator will also talk to your partner alone. Then, if possible, you will meet together in a neutral setting to discuss the relevant issues.
- The mediator will facilitate the discussions between you and your former partner and identify a way for you to reach agreement.
- Mediators cannot give legal advice, nor are they trained in Family Law. If you feel you need legal assistance you should consult your divorce lawyer beforehand and, possibly, between sessions. You could also consider the possibility of lawyer assisted mediation or another approach, such as Collaborative Law, when your solicitor will accompany you.
- At the conclusion of the mediation sessions, the mediator will prepare a document recording the decisions you have made and agree to uphold.
- Am I obliged to attend divorce mediation?
There is no legal requirement for separating couples to undertake mediation. However, if you cannot reach decisions about children, property and money and you later need to apply to the Family Court for a court order, you will be required to attend a Mediation Information Assessment Meeting (MIAM) beforehand to explore whether mediation would help you to reach agreement.
Is mediation better than going to court for a financial settlement on divorce?
Going to court is usually more time consuming, expensive and stressful than attempting to agree the arrangements through mediation. When you apply to the court, a judge will decide the arrangements for children, property and finances; these decisions will be out of your control. Therefore, if you would prefer to attempt to resolve your disputes with the help of an independent professional, mediation may be the most appropriate option
Mediation is not suitable for everyone and in certain cases it will be necessary to apply to the court in the first instance. If you feel you would be unable to reach agreement through mediation your divorce lawyer will advise you of other ways to resolve your disputes without redress to the court, such as family arbitration and Collaborative Law.
Is a divorce mediation agreement legally binding?
No, the document you receive at the conclusion of your mediation is neither legally binding nor enforceable. However, you can ask a solicitor to draft a consent order to reflect the terms of the mediation agreement and apply to the court to have it approved.
Will my divorce lawyer be able to advise me during mediation?
Usually, mediation sessions occur exclusively between you, your former partner and the independent mediator. However, it may be possible to arrange lawyer-assisted mediation so that each party's solicitor also attend the meetings.
Lawyer assisted mediation can be useful if you are particularly nervous about speaking to your former partner or you do not fully understand your legal rights.
Is divorce mediation a free service?
No, there are numerous costs associated with mediation, including that of the MIAM and subsequent mediation meetings. If you wish to have a lawyer accompany you during mediation, there will be a separate fee for their services. There are additional court fees if you wish to apply for a consent order once you have reached a mediated agreement.
However, usually, the costs associated with financial settlements and arrangements for children agreed through mediation are lower than when they are sought through the court system.
Mediation or Collaborative Divorce?
When communication remains amicable but the matters to be decided are particularly complex or there is a lot at stake, a Collaborative Law approach may be more appropriate than mediation. This is because your solicitor, financial and pensions advisers would be available to participate in the Collaborative Law process.
In Collaborative Divorce at the beginning all parties sign an agreement, which sets out how the meetings should proceed and the issues that need to be resolved. You, your former partner and your divorce solicitors agree to conduct the negotiations openly and constructively.
As a trained Collaborative Lawyer, Donna Goodsell can provide expert legal advice for a Collaborative Divorce.