Divorcing couples now need to consider mediation — it’s required by law. In this guest post, the Rt Hon Simon Hughes, former MP for Bermondsey and Old Southwark for 32 years and Deputy Leader of the Liberal Democrats in the House of Commons, takes us through the process of divorce mediation and how it can help with custody issues, finances, changes in circumstances and more.
He says, “If people are unable to make their marriage work then they should use mediation rather than fighting expensive and drawn out court battles over their children or finances. We have made millions of pounds of legal aid available for mediation and we have provided funding for more free sessions. We have also changed the law so that anyone considering a court application must consider mediation.”
The first working Monday of the New Year sees a traditional spike in the numbers of people turning to the web to find out how they can separate from their partner. More than 70% of couples who use mediation to settle a dispute over children or money reach successful agreement. (Also read our piece: Will mediation make divorce better?)
Understand the current law regarding divorce mediation
Since 2014, anyone looking to the family court to make an order about their children’s arrangements or finances must first of all consider family mediation. There are some exceptions to this – for example if there is a history of domestic violence or child abuse.
What is Family Mediation?
This is where a trained, independent mediator will take a couple through the process of resolving their issues in order to reach agreement about things like child arrangements and finances – including pensions, property and savings.
Mediation can also be used to help with other issues you might face, for example how your children keep in touch with their grandparents or step-families or your in-laws. It’s not only an option when you separate: Mediation can also be helpful when arrangements you’ve made in the past need amending due to changes in circumstances, such as a new partner coming on the scene or a child starting school.
How can I find a mediator and what happens when I do?
When someone looks for information about mediation on the web they will be directed to the Family Mediation Council, which contains lots of helpful information on mediation, along with a search to find a local family mediator anywhere in England and Wales. You should look for a mediator who is registered and accredited with the Family Mediation Council and who can carry out a Mediation Information and Assessment Meeting (MIAM).
Once you’ve found a mediator near you, you can make an appointment for a MIAM; this means you and the mediator can work out whether mediation is suitable for you and your circumstances. The mediator will get in touch with your former partner to invite them to the MIAM – you do not need to do this. You can attend this meeting with your former partner or on your own.
At the MIAM, the mediator will identify the main issues that have become sticking points between you and will categorise your case as ‘All Issues Mediation’ which comprises child arrangements and money and property, or child arrangements alone, or just money and property.
What are the outcomes of divorce mediation?
With mediation, it is the couple who have ownership of what is agreed, unlike a court order imposed upon them by a judge and which may not be what either of them wanted. As mediation comes to a conclusion there are several outcomes which can be achieved. In the case of:
- Child arrangements – the couple can agree a Statement of Outcome, and
- Property and money – an Open Financial Statement can be produced and sent to solicitors for processing.
When an agreement is reached, the mediator will write up a ‘Memorandum of Understanding’ so that everyone is clear about what has been decided.
Agreements made in mediation are not legally binding but very often when a couple have gone through mediation, they have taken ownership and come to some mutually agreeable arrangements that they will be able to stick to.
That said, agreements arrived at by mediation can be made legally binding – both for financial agreements and child arrangements. The court will still scrutinise the agreement to make sure that it meets the child’s welfare needs.
What if family mediation doesn’t work?
Mediation is a voluntary process, so both parties will need to work together to reach an agreement that will last and that both will stick to. If either party approaches mediation as merely a stepping stone to court and they are not properly engaged with the process then it simply won’t work.
Mediation is not, however, suitable for everyone’s needs and circumstances and it will be the mediator’s role to assess this at the initial meeting and as mediation progresses. The positive thing is that family mediation is always available and this is particularly useful as people’s circumstances change.
How much will it cost?
If you are paying for mediation yourself, you should shop around as fees vary between services. It is always a good idea to ask the mediation service about fee packages and be clear about what these include and exclude.
The meeting and the sessions usually last an hour. The fee usually remains the same for each session and the number of sessions will depend on the complexity of the things to be discussed.
Legal Aid and Mediation
Legal aid remains available for those who meet the eligibility criteria. This means that for a funded person, the MIAM, mediation sessions and legal help with mediation will be covered. Recently the Government extended funding further so that, if one person is entitled to legal aid, the other party will also have the first session of mediation for free. The legal aid tool available on the Gov.UK website will help customers to assess whether they are entitled to legal aid. Your mediator could also help you assess whether or not you would qualify.
If neither of you qualify for legal aid, you will have to finance the meeting, the mediation sessions and any legal advice yourself. However, the cost of mediation, even when supported by legal advice, is usually much less than using a lawyer and going to court.
First Stop: Family Mediation
Family mediation is there to help you sort out any disputes that you might have if you are separating or divorcing. It is not about getting you and your partner back together, but about helping you to work out the practical issues such as arrangements for your children, child maintenance payments, finances (such as your house, savings and pensions) or dealing with debt. Mediation can help you to avoid big legal fees and long drawn-out court battles. — Rt Hon Simon Hughes MP
For more information please visit the Family Mediation Council website.
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