There is a bit of a misconception around family mediation and divorce that you must go through the mediation process before you can apply for a divorce. This is not the case. Here we look at how family mediation works, examine proposals put forward by the government in 2023 to reform the system and explain how the team of experienced family lawyers at Gamlins Solicitors LLP can assist individuals going through mediation.
How Does Family Mediation Work?
For many couples, family mediation is an effective way to deal with all those issues around finances and child arrangements that arise during divorce and separation. The process operates outside the family court system. It involves couples meeting with an independent family mediator and trying to formulate the basis of an overall settlement. Because of the perceived advantages of family mediation, the government provides financial support to couples wishing to avail of the services of an accredited family mediator.
Before you discuss finances and children in detail you and your spouse will be required to attend a Mediation Information and Assessment Meeting – a MIAM. The purpose of the MIAM is for the mediator to provide you with all the information you need to decide if mediation is right for you and your spouse. The mediator will also make an assessment at the meeting as to whether as a couple you are likely to benefit from family mediation or not.
Mediation resembles the family court divorce process in that you are expected to make full disclosure of all your assets and finances in what’s called an Open Financial Statement (OFS). In addition there will usually be in-depth discussions about child arrangements. You and the mediator work towards creating a Memorandum of Understanding (MoU) that records what you have agreed in the mediation.
Is Compulsory Mediation On The Way?
One of the key characteristics of family mediation is that it is a voluntary process. You can’t be forced to mediate if you don’t want to. You are however expected to attend the MIAM mentioned above before you apply to court for a divorce, unless one of the very limited exemptions applies to your case (for example, if there are allegations of domestic abuse).
That said in 2023 the government began to consider making mediation compulsory to some extent, suggesting that couples could be required to consider mediation. The Ministry of Justice also indicated it may extend the financial contribution made towards mediation as a way to encourage more people to go down the mediation route.
Reasons why the government might reform family mediation include:
- The fact that the family courts in England and Wales are stretched to capacity – couples wishing to ask a judge to resolve their financial issues and chid arrangements face long delays.
- Uncertainty – From a public policy perspective, delays like those mentioned are unwelcome because of the knock-on uncertainty they have on children and families.
- Cost – Many people believe that mediation offers a cheaper, less acrimonious way of resolving matters during divorce without relying entirely on an overstretched family court system.
How Can We Help In The Mediation Process?
At Gamlins Solicitors LLP we do not do family mediation ourselves. Like most family law solicitors, our role is to give you preliminary advice if you are considering mediation. We can give you a realistic idea of what you might receive in terms of a financial settlement and what arrangements might be put in place for your children if the case ended up going to court. We will also advise you generally on the mediation process and on whether it might work in your case.
In our experience this early advice can reduce conflict between you and your spouse by injecting a degree of realism and pragmatism into the situation.
If you decide to mediate, we are available throughout the process to give you advice on any proposals that have been made regarding finances and children, providing expert guidance on the considerations you should bear in mind. For example, have any pensions been professionally valued? What might happen if there is a change to financial circumstances in the future?
If you do reach a mediated agreement and finalise an MoU we can scrutinise it and ensure it properly protects your legal position. Our role is then to take the MoU and use it to draft formal ‘Consent Orders’ that we lodge with court for approval. Until court orders are in place it is open to either side to make financial claims against the other in the future – irrespective of what you agreed in mediation.
Comment
For many, family mediation is a cost-effective way to sort out finances and child arrangements when getting divorced. To ensure the agreement you reach in mediation is appropriate and protects you legally it’s always advisable to ask a family law solicitor to analyse the settlement and prepare any relevant court documents for you.
As we have pointed out however mediation is a voluntary process and will not be suitable in every case. In light of this, it will be interesting to see how government proposals in 2023 to make family mediation compulsory – opposed by many in the legal sector – will work out in practice.
Contact Us
If you need any advice on family mediation or the divorce process generally, please call us on 01492 532275 or email
Gamlins Solicitors LLP has a network of offices across North Wales and we can arrange an in-person appointment at the office that is most convenient for you or a remote appointment if you prefer.
