Archives For May 2014

It is well known that solicitors are expensive – or at least the good ones are! However, resorting to any Court action in family law is always seen as the last thing we or you want. If we cannot agree something between the parties quickly with the help of their solicitor, then the next step would be to discuss referring you to the much cheaper dispute resolution process of Mediation.

The first thing to say is that Mediation is not marriage counselling or anything like that. They are not going to try to get you back together. What they are going to try to do is start a dialogue between you both and see if, through that dialogue, an agreement on the questions between you can be reached.

Mediation is not for everyone. If there has been abuse or anything of that nature that might put you at risk then Mediation will not be taking place. However, for many the process of Mediation can provide a solution that is much cheaper than the cost of taking Court proceedings, and can provide an outcome which, as it is agreed by you both rather than imposed on you by a Judge, you may just think is better.

The Government certainly think that Mediation is the way forward for many, and has recently gone so far as to introduce that what is called a Mediation Information and Assessment Meeting as a required step for anyone who wishes to issue Court proceedings over a dispute with an ex regarding children or over the division of the assets of a marriage.

A Mediation Assessment and Information Meeting, or MIAM, does exactly what it says on the tin. You can attend alone or, if you agree, with your ex. The meeting is taken by an experienced accredited Mediator and is designed to see if Mediation is appropriate in your circumstances, and whether, having heard what the Mediator has said, you wish to undertake it, and how you go about that.

To be clear – if you want to go to Court you must now attend a MIAM, but that does not mean you must mediate. Mediation is a voluntary process and both you and your ex must agree that you will undertake it together.

The MIAM should take between 45 minutes and an hour. If your circumstances are such that Mediation is appropriate to resolve the issues between you and your ex, the mediator will take you through the next steps. Obviously, if you have attended without your ex, the next step will be to see if they are willing to undertake Mediation!

One question often asked is ‘what can or can’t be agreed at Mediation?’ The answer is, well, you can mediate on just about anything! You can use it to agree what should happen as far as seeing the children is concerned, or when there should be holidays each parent each year, or what school they should attend. You can agree how the assets of the marriage should be split. You can agree what grounds the divorce will be based upon, and what should go in it; and, perhaps even more importantly, what is to be left out!

Mediation does not mean you should not take legal advice during the process. A Mediator will not be giving either one of you legal advice, and most Mediators will refer you to your solicitors at appropriate points along the way. Knowing where you stand legally on the issues you are debating should positively inform the agreement that is reached through Mediation. An experienced lawyer will be able to map out the potential consequences of the decisions you are debating, and make sure you have not missed anything that may come back to bite you in the future.

Whatever you mediate on, should the process be effective and agreement be reached, then the Mediators will produce a document that sets out that agreement called a Memorandum of Understanding. The Memorandum will usually then form the basis of a more formal legally binding document, be that a Separation Agreement or, if divorce proceedings are to be undertaken, a Consent Order to be made by the Court at their conclusion. Once more, that is where your lawyer comes in to draft those vital final documents that bring an agreed conclusion to the financial relationship, or inform how your future working relationship will be conducted where children are involved.

It may sound like turkeys voting for Christmas but we do care about the cost to our clients of dealing with difficult conflict in family matters. Not for the sums we are paid, but for the fact that an increased bill means increased conflict and acrimony, and that means we have failed in our duty to any children involved. An increase in acrimony between their parents can only harm those children, and the increased costs can only come from an already diminished and strained budget that is to support them too.

It’s not for everyone, but when Mediation works it works well.