Can mediation be a ticket to a quick divorce?
Increasingly, mediation is being presented as an alternative to traditional divorce proceedings. Join us as we explore the advantages and disadvantages.
If you're a couple preparing for a divorce, you might think that your only option is to go through the courts. But, in fact, there are several routes you can take – and an increasingly popular one is mediation.
Traditional litigation is expensive and time-consuming. More and more, it's presented as a last resort. This isn't just because the courts are working through a huge backlog of cases – it's also because other methods can be quicker and cheaper.
Mediation isn't for everyone. It's not appropriate if
domestic abuse is involved or the split is acrimonious. And while it can speed up the process, this isn't a given – both parties need to be committed to the process for it to work.
This is because mediation isn't a trial that seeks to establish a verdict of guilty or not guilty. It's a structured negotiation facilitated by the mediator. If the separating couple are at loggerheads or unwilling or unable to communicate effectively, it's rarely effective.
Nevertheless, for many separating couples it has its advantages.
What are the advantages of mediation?
With mediation, the couple has more control of the process than in traditional litigation. There's no judge who can hand down a sentence that's ultimately not in the separating couple's interests.
It can also be quicker and cheaper – but only if the couple are willing to work towards an agreement.
A less commonly cited advantage is privacy. The family court is growing more transparent. Increasingly, journalists are allowed to attend and report on trials. Even without this press presence, a court case can make you feel exposed.
Mediation, by contrast, is strictly confidential and can take place in neutral, comfortable surroundings – or even from the comfort of your own home via video conferencing.
It can be less confrontational. The emphasis is on collaborative problem-solving facilitated by the mediator. It's bespoke – you can reach your own conclusions as a couple and involve professional advisers where appropriate.
The outcome of mediation isn't legally binding – you have to seek independent legal advice to translate it into a binding court order. This means that the discussions can be freer and more exploratory than in court.
Taken together, these factors can lead to a far less emotionally taxing process than traditional litigation – but only if both parties are on the same page and willing to cooperate.
What are some of the disadvantages of mediation?
Both parties need to be fully on board for mediation to work. If one party is reluctant or there's conflict between them, it can be challenging.
And while it has a reputation for speed, it's not automatically quicker. If one spouse feels like they've been strong-armed into the process, it's likely to lose focus and take longer.
If the aim is to get a binding outcome as soon as possible, arbitration could be a better option.
How does it work?
The mediator facilitates the process. They're not a judge delivering a verdict. Their job is to nudge people towards an amicable outcome with regard to money, property and children.
Unlike a judge, the mediator can't impose an outcome. Both spouses have to agree – one reason why the process can sometimes drag on.
You have the option of trying mediation before going to a solicitor. In many cases, a solicitor will point you towards mediation if you haven't already tried it.
At the introductory meeting, you and your ex meet separately with a mediator. Next, you all sit together or meet online to discuss your differences. If there's a lot of conflict between the separating couple then the mediator can be a "go-between" with the two parties sitting in different rooms.
The mediator doesn't give legal advice but does listen to both sides. Their aim is to create a calm atmosphere which encourages negotiation.
When the couple reaches an agreement, a "memorandum of understanding" is produced. This has to be turned into a "consent order" if it's to be legally binding.
If an agreement can't be reached, a solicitor can talk you through your options. These could include arbitration, collaborative law or arbitration.
What can make mediation last longer?
There's no definite time frame for mediation and there are factors that can make it take longer. These include:
- Complex finances, especially if business interests or rental properties are involved
- Unwillingness to compromise
- A desire for conflict from one or both parties
- The number or complexity of the issues that need to be resolved
How voluntary is it?
Mediation is voluntary – but if you end up in court, you will normally have to demonstrate that you've been to a mediation information and assessment meeting (MIAM).
This is an introduction to mediation and how it works. You need to attend to show that you've considered it as an option – simply going to the meeting doesn't commit you to the process.
There are some circumstances where this doesn't apply, for instance when the separation has involved domestic abuse.
How much does it cost?
Mediation isn't free but is usually much cheaper than instructing solicitors.
If the disagreement with your ex is about a child then you could be entitled to a £500 "mediation voucher".
If you're on a low income, you can get legal aid to pay for the introductory meeting and one mediation session for both people, followed by more mediation sessions for the person who qualifies. Legal aid can also cover the solicitor's fees needed to make an agreement legally binding.
Prices for mediation vary, so it can be advisable to shop around and bear in mind that the cheapest option may not be the best you can get.
If you and your ex want to keep the costs as low as possible, it pays to reach some agreement before the process begins. Agreeing a fixed number of sessions can also stop the process from drifting.
Are you looking for a
family solicitor in Leeds, Pontefract or Harrogate?
Get in touch for a free, no-obligation consultation.
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