Mediation is an alternative form of dispute resolution which is distinct from litigation and the court process.  

Mediation is being used more frequently in Family Law disputes following a recent initiative created by the Ministry of Justice called the Family Mediation Voucher Scheme; this was introduced to encourage out of court settlements (this will be discussed further later in this article). 

What is Mediation?  

Family law mediation is an out of court process in which a neutral, professionally trained mediator assists in helping you and your ex-partner to resolve or narrow issues regarding family matters, such as arrangements with your children or finances, after you have separated. 

The mediator will act as an independent party who will listen to each parties’ submissions and attempt to find solutions to any problems that have developed through the breakdown of a relationship.    

A mediator will not be able to make a final legally binding decision on any dispute and will only be able to assist parties in the negotiation and potential resolution of a dispute. If both parties come to an agreement in a mediation session, they will need to contact a solicitor to create a legally binding decision.  

Mediation vs The Court Process 

Mediation is a process which is independent of the court process. It will take place in a neutral setting for each party and will not follow the same procedure as formal court proceedings. If you and your ex-partner do not want to be in the same room together, the mediator can keep each party separate in different rooms and talk to each party separately to facilitate negotiations. It is also increasingly common for mediation to take place online, which some parties may find easier.  

In addition to the above, it is worth noting that mediation is less costly than going to court as there are no adverse costs. If mediation is unsuccessful, the option of proceeding to Court to have the dispute determined by a judge will remain available. It may also be possible to have vouchers to pay for mediation if your dispute involves children.  

In summary, mediation acts as an alternative form of dispute resolution and allows the parties to attempt to negotiate before entering the court process.  

The family Courts have mediation as a pre-requisite for issuing proceedings unless an exemption applies. This is because the Courts would prefer to facilitate families communicating with each other because this is better for those involved and makes room for the matters that cannot be resolved out of Court to be able to be heard.  

The benefits and drawbacks of Mediation:  

Speed – Mediation is arguably a much faster process than lengthy court proceedings. A mediation may conclude after one day if the parties come to an amicable agreement.  Not legally binding – It is true that mediation may facilitate successful negotiations between you and your ex-partner. However, an agreement at mediation will not automatically make the decision legally binding. You will have to instruct a solicitor to help you create a legally binding agreement after the mediation has taken place. 
Privacy – Mediation is carried out in a private setting.  Issues that remain in dispute – If one party is unwilling to negotiate or some issues remain unresolved at the mediation, you may need to consider entering the court process for these issues to be determined. 
Cost – Mediation is far less costly than court proceedings and vouchers are available where children are concerned. These vouchers are not means tested. Wasted costs – If the parties are unable to reach agreement, then the cost and time spent attempting to come to an agreement will be wasted.  

 

Note: you will not be able to recover the costs of mediation from your opponent in court proceedings.  

Control – You or your partner can have more control over the process and discuss the present issues more freely and attempt to come to an agreement or middle ground.  Result not guaranteed – This follows on from the above disadvantage. Mediation does not require a mandatory resolution, so there is no guarantee that the mediation will resolve the issues. 

 

The benefits and drawbacks of The Court Process:  

Certainty – The court process has a definitive ending, meaning that a decision will happen at a final court hearing. The decision that is reached will be legally binding on all parties. Risk – Despite the fact that court proceedings will create a legal binding decision, this does not always mean that you will get what you want. The Judge will assess the fairness and reasonableness of any final decision. The legal costs for pursuing through Court can increase rapidly.  

 

You will need to balance the risk vs reward of pursuing an action in the court process. It is advisable to seek advice from a solicitor on the risks associated with the court process.  

Set process – In contrast to mediation, the court process is set from the start of a dispute and provides a clear course of action. The court will set out prescribed directions that each party must follow to prepare for trial. This may be useful for parties who are not able to agree the process in a mediation meeting. Time – The court process can take a considerable amount of time ranging from months to years dependant on each Family Court backlog of cases. 
  Cost – It is expensive to run a dispute to trial. You will be unlikely to recover the costs that you have incurred (unless you are involved in a cohabitation dispute).  

 

 

 

The Family Mediation Voucher Scheme  

In March 2021, the Ministry of Justice introduced the new Family Mediation Voucher Scheme with the intention of helping parties who may be in a position to resolve a family law dispute outside of the court process.  

If you are eligible to benefit from this scheme, the Ministry of Justice may contribute up to £500 towards the costs of mediation. The case types which will be considered under the scheme include:  

  • A dispute/application regarding a child. 
  • A dispute/application regarding family financial matters where you are also involved in a dispute/application relating to a child. 

At RHL Solicitors, we have experienced family law professionals who will be able to help discuss the mediation process and offer advice on all the options available to you.  

Our goal is to help make your life easier when it comes to legal support, while providing you with an exceptionally high standard of care. 

We don’t just try to reach a settlement for you; we help to resolve legal disputes and achieve the very best outcome by tailoring our advice to your own individual needs. 

Please do get in contact if you require further information on the mediation process – our family law professionals are happy to assist.