As of 22 April 2014 it has become compulsory for the applicant, in respect of a private Children Act matter and an outstanding financial dispute, to attend a mediation assessment meeting before they can apply to the court to request an order.
In these tough economic times, more people are considering mediation to negotiate their divorce settlements, because of the perceived potential cost savings.
In mediation, parties meet with a private and impartial mediator to work out the details of their divorce settlement, which could include both financial matters – what will happen to the home and where will the parties live, as well as the living arrangements for their children.
However, it is a misconception that a mediator will advise and make recommendations to the parties about how they should settle their case. Also, a mediator will not be able to write a Settlement Agreement or handle the divorce court case.
Mediation is not a process that ends with a Final Judgment of Divorce.
When parties are in mediation they should also take legal advice from a family law solicitor. The role of the mediator and the solicitor are not the same. Clients may want to use a solicitor who is a member of Resolution, a group of solicitors who believe in a constructive, non-confrontational approach to family law matters.
Mediators work with couples, and not with each individual spouse. Mediators do not give legal advice to each party separately. The whole point of mediation is that the mediator stays neutral.
A solicitor, who is focused on you as a client, is going to advise you about the choices you should make in order to resolve your case, they will tell you the facts of your case and the options you have. A solicitor will explain your options with regards to the splitting of the matrimonial assets. A mediator will NOT provide a client with this information because it’s not their job and they must remain neutral.
Spouses who are negotiating for themselves in mediation need to know, before they start the process, their rights and responsibilities, both individually and as a parting couple. An initial meeting with a family law solicitor is essential to make mediation more successful.
This meeting would make the mediator’s job easier and the process more beneficial. Clients will be negotiating from a position of knowledge. When couples come to mediation they are often at opposite ends of the spectrum as to what they should agree to. If neither of them has had the benefit of legal advice, they cannot come to the table to negotiate well prepared.
If parties come prepared this allows the mediator to build an agreement between the parties in less time and with fewer arguments, as the parties know the parameters for a reasonable settlement from their respective solicitors.
Once the process of mediation is completed, the mediator prepares a document known as a Memorandum of Understanding.
The parties do not sign this memorandum but wait until one party’s solicitor converts the Memorandum of Understanding into a formal Settlement Agreement, which the court will accept as a final Agreement – better known as a consent order.
Mediators will not write the agreement, as they want to remain neutral. The Memorandum only expresses the facts of the party’s agreement, but does not include standard legal language that a completed consent order includes.
It is important that once the lawyer for one party has written the final consent order, each spouse has reviewed it carefully.
Once the final consent order is reached, written and signed by the parties, someone has to take the step of actually filing for divorce, assuming that this has not already been done.
In summary the parties need to have independent legal advice so they can begin the process of mediation intelligently. The parties need to have independent legal advice so they know that the final agreement they enter into is correct and valid.
If you have any questions regarding this article, please contact Paul Prentice. Direct line – 01483 237 989.