Mediation can be a useful process for many couples who have decided to separate. It avoids the high costs which can be incurred by using the Court process and can be a much quicker and more cost-effective route.
First steps for mediation
Mediation will not be suitable for everyone, so the first step is to attend a Mediation Information and Assessment Meeting (MIAM). For example, if you have suffered from domestic violence then mediation is unlikely to be applicable. Mediation can take place remotely or in person and there is also shuttle mediation or solicitor supported mediation if you do not feel comfortable in the same room as your spouse.
You cannot force a spouse to attend mediation if they are unwilling.
Alternatively, if you are considered appropriate for mediation the next steps will be to provide your financial disclosure to assist the mediator in assessing how to divide the financial pot in a way which meets both parties’ needs and is a fair approach. If an agreement is made and approved by the mediator, the mediator will draft a memorandum of understanding reflecting the settlement reached.
Throughout the mediation process you also have the option available to you to seek advice from your legal advisor which would be beneficial especially when you get to the stage of making a proposal for settlement.
Steps after mediation if an agreement is reached
After reaching an agreement in mediation, it is important to seek independent legal advice on the terms of this before proceeding further. If you are then advised to proceed with the agreement, your legal advisor can turn the agreement into a Consent Order. The Consent Order will then be signed by you both before it is sent to the Court to be referred to a Judge to review. When the Consent Order is approved by a Judge, it will give it the status of a legally binding order and give you protection and certainty for the future.
Steps after mediation if no agreement is reached
If no agreement is reached, there are alternative routes to achieve a legally binding order. One option would be to seek legal advice with a view to progressing the finances by way of entering into voluntary financial disclosure via solicitors. This process involves collating all of your disclosure before this is exchanged. This would then hopefully give a clear picture of the financial position to enable negotiations to progress.
Another option would be family arbitration where an arbitrator acts as an independent third party who decides on an agreement based on the facts of the case. The arbitrator will produce an ‘award’ which is legally binding as if ordered by the Court.
A final option would be to issue court proceedings to move forward with the finances. This process puts a timetable in place to ensure your case is progressed in a structured fashion. However, this process can be lengthy and expensive. It is usually the option however, where one party is refusing to disclose financial information or to fully engage in the process.
Deciding on which option is best for you will depend on your circumstances. It is always beneficial to seek legal advice at an early stage.
If you need any support regarding mediation or separation and divorce, please contact our Family Law team and we would be happy to help.