Publish date

18 January 2021

Why mediation matters when it comes to divorce

Kirstie Law recently wrote an article for ePrivate Client

This week, the 18 – 24 January 2021, marks family mediation week. The mediation process involves a couple working with normally one mediator, (but in some cases two mediators/co-mediators,) who encourages them to come to a solution that works for them both and their children (if applicable).

The mediator is impartial, but will give the couple information as to the law and, for example, how in his or her experience the court might deal with a particular issue. The process can provide real benefits in appropriate cases. It reduces tension and hostility and helps couples make their own informed decisions about their futures. In addition, it can help to facilitate a smoother and faster divorce by keeping it out of court. We find it has a high success rate, over 90%, in respect of both children and financial issues.

Mediation during COVID-19

COVID-19 has had a significant effect on the court system, leading to delays and backlogs. People who have waited months, or even years, for a hearing now find themselves in limbo. They are waiting to hear from the court with a new hearing date which could be many months away having already in some cases, spent tens of thousands of pounds getting a case ready for trial. This applies to both children and financial hearings.

The current situation does however provide the opportunity for former couples to see whether they can resolve their differences without a judge deciding the issues for them.

It is possible to mediate online enabling both parties to see each other and the mediator to see both of them. This enables the discussions that would have previously happened around a table to still take place. For people who were previously concerned about the prospect of being in the same room as the other party, they may find mediation via video link preferable.

Children and mediation

Some mediators are qualified to see children as part of the mediation process.  Having had an initial meeting with the parents, (who both have to agree to the mediator seeing any children) the mediator will then have a meeting with the child(ren) without the parents, although another adult will be present.  After this, the mediator will report back to the parents any points that have been specifically agreed.

The mediator will make an effort to ensure that the environment is relaxed, including providing appropriate child friendly refreshments and offering the opportunity for the child or children to doodle or draw a picture (if the meeting is able to take place face to face).

It is important to emphasise that the child(ren) is/are not being asked to decide what will happen, but told that mummy and daddy want to know what they feel about the current situation and any suggestions they have with regard to arrangements going forward.

The feedback from both children and parents who have been involved in mediations where the children have had direct involvement and the opportunity to discuss issues with the mediator is extremely positive.

Finances and mediation

When it comes to financial proceedings, it can be very difficult to predict the outcome of cases being decided by a judge. This is because they will have quite a wide discretion as to what settlement is appropriate in any given case. As such, potentially thousands of pounds could be spent obtaining an order that no one is happy with.

It is arguably far easier to live with a settlement into which you have had input than one that has been imposed on you. In addition, the mediation process can take into account the priorities of both (e.g. one wanting to keep the house, the other a pension) and consider whether a clean break settlement is the best solution.

While a mediator will want both parties to provide financial disclosure, the couple can decide when, and for what period, this is provided. In contrast, the court process requires bank statements for a year.

Mediation is also generally a lot speedier. It is normally possible to have a first mediation appointment within a week of the mediator speaking to both, whereas even before COVID-19 the first court hearing was normally three or four months after the court processes the application.

The breakdown of a relationship can be a painful and difficult time for all involved. By opting for mediation, it is possible to help mitigate the stress of a divorce or separation, by making the process smoother and faster, and helping to ensure an outcome that works for everyone.

This article first appeared in ePrivate Client

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