People involved in Children Act and financial remedy disputes are often concerned about the emotional and financial cost of protracted negotiations between solicitors and/or court proceedings. However, there is an alternative.
Although there are cases where it may not be appropriate, mediation is a much underused process in dispute resolution. It involves a couple meeting with a trained mediator (preferably one who is also an experienced family law solicitor) who will assist them to reach a settlement, whilst remaining impartial throughout the process.
The participants will be encouraged by the mediator to take legal advice from their own solicitors before, during and/or after the process and although the terms of settlement reached within mediation are not binding, they can be formalised into a draft consent order for approval by a judge, which then becomes binding.
However, mediation only works if both parties enter into the process in good faith. It is unlikely to be successful therefore if, for example, one party is only attending mediation to delay matters or to try to avoid being ordered to produce financial disclosure.
There are several advantages to mediation:
- The average total cost of mediation is frequently between £3,000 to £5,000, plus VAT. The costs are often paid equally or, if one participant is in a stronger financial position, they may pay the mediator’s fees in full. This can be far less expensive than litigation which can often cost parties tens of thousands of pounds each.
- Mediation also often provides a much quicker process than the average court case. It usually involves attending between two and six sessions, which are arranged at times and dates to suit the participants. Mediation sessions typically last between 1.5 and 2 hours, although they can last longer if the parties wish to continue. Mediation can often be concluded within weeks or a few months, which is in contrast to the court process, which can take a year or more to conclude.
- A third advantage of mediation is that when participants reach a settlement with the assistance of a mediator, they are more likely to abide by its terms. This is because they have invested time in the process and strived to achieve a settlement, often with both of them making compromises, whereas a court order is imposed on them by a judge who may not consider many issues that a mediator would allow participants to explore and express within the mediation process. Mediation also allows parties to think ‘outside the box’ and reach a settlement that a judge may not have ordered, but which works for themselves and/or their children.
- All discussions and offers (but not financial disclosure) made within the mediation process take place on a without prejudice basis, which allows the participants to be frank and honest in their discussions and offers, without fear of the other being able to disclose the discussions or offers to a judge in court, at a later date.
One of a mediator’s roles (especially a mediator who is also a practising family law solicitor) is to provide reality checking for the participants. One or both parties may attempt to negotiate a settlement without first taking legal advice, which could lead to them not being realistic in their proposals. By ‘reality checking’ unreasonable or unrealistic proposals with the assistance of a mediator, parties can avoid wasting time discussing a proposed settlement which a judge would not approve.
If you are considering mediation for any financial remedy or child arrangements dispute, you can contact Desmond O’Donnell or Kirstie Law who are both experienced family solicitors and mediators in the Family team.