Should you Involve Mediation during a Divorce?

What is mediation?

Mediation is a way to sort out issues that arise during separation, a mediator will be present during meetings to ensure all conversations are constructive and each person is allowed to have their say.

Mediation provides the flexibility to sort out issues relating to children, finance or other assets. It is important to bear in mind that mediation isn’t a form of relationship counselling – in other words, it isn’t about helping you get back together. But, more to help you amicably agree on issues that arise after you have decided to separate.

Mediators are in place to remain neutral and impartial, they are trained to help you identify and resolve any issues. They are not permitted to provide any legal advice during this process, so it is therefore recommended to seek advice from your solicitor before and during mediation.

Once you have reached an agreement on all of the issues, your mediator will draw up a “Memorandum of Understanding” outlining what has been proposed. You then need to send this to your solicitor, who will draw up and advise on any necessary legal papers.   

How mediation works?

Mediation typically takes place over a series of sessions, lasting an hour and half with a professionally trained mediator present.

Initially, the mediator will meet you and your ex-partner separately, this may be in person or a discussion over the telephone. The purpose is to establish if both parties feel comfortable and safe to meet. There are circumstances where mediation will not be an option; this includes cases of domestic violence. If your ex-partner refuses to seek assistance through mediation, it is advised you still proceed individually, as you can then later provide the Court with evidence that you have initially tried mediation. You cannot force your ex-partner to go to mediation.

Your first session is an opportunity to air the issues you would like to be addressed; the mediator will then help you to gather any information required to discuss these issues. To reach an agreement on each issue raised typically requires four to five sessions, however, this does depend upon the number of issues raised and the complexity of these issues.

Once the mediator has created the Memorandum of Understanding, you will need to take this to your solicitor for advice on how to proceed and draw up any required paperwork for the Courts. The Courts will then review this paperwork including the Memorandum of Understanding to create a binding order.

Do you need a mediator and is it a legal requirement?

For some, mediation can be a helpful approach to reach a more peaceful and amicable divorce. For this reason, the Government is keen to promote mediation, as it is also less costly than a traditional divorce. As a result, the Government has retained legal for mediation but removed Legal Aid for the majority of divorces, financial and child proceedings. Mediation works best alongside independent legal advice, especially where finances are concerned.

It has also been acknowledged that the mediation works better when you have trust in your ex-partner, especially when it comes to producing financial information.

How can Eatons help?

Whether you are amicable with your ex-partner or not, in most cases it is still helpful to have independent legal advice. As your solicitors, we can help advise if you are better off going down the mediation route or if the financial proposals created will work in reality. We can oversee all the necessary elements for your divorce have been covered, more importantly, we can help you decide if going to Court will produce a different outcome – if so we will be by your side to advise and prepare you every step of the way.

It is worth noting, a mediator can give you legal information, but they cannot provide you with legal advice. In essence, the mediator is there to act as a referee.

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