When a couple decides to divorce there may be important areas, e.g. contact, finances, residency etc where they cannot agree. Providing there is not an issue of domestic violence a solicitor or in some cases a court or CAFCAS officer may recommend that the couple go for mediation. Mediation takes place in front of a disinterested third party who may make suggestions that will help the couple to resolve their differences and come to some agreement that suits them both. Mediation is a process whereby the welfare of any children of the relationship is to be regarded as paramount.
Many professionals swear by the mediation process but there are no actual figures available to say how successful it is. If a mediation agreement can be reached then the mediator has no further contact with the couple and may never know whether they actually stuck to the agreement or not. Mediation is encouraged now on a regular basis ad some family law solicitors are being persuaded to become mediators themselves. It is unfortunate that in most cases the court does not follow through on the mediation process. The key points of mediation, i.e., the points which are meant to guide the mediator through the process are as follows:
- A mediator is not there to give the couple legal advice, rather they should be an impartial guide and observer to the process
- Mediation is a voluntary process and if a couple decides that is the way to go they can choose mediation. If a couple decides that the mediation process is not working for them then they are free to withdraw at any time.
- While mediation may be suggested in a relationship where violence has occurred it tends not to work because the non-violent partner is often too intimidated by the other party to attend.
- If a couple do reach the point where a mediation agreement is drawn up, it needs to be recognised that such a document is not legally binding. In order for a mediation agreement to become binding it must be changed into a Consent Order and presented to the court.
- Mediation is designed to help couples reach some agreement at a much lower legal cost to themselves and without the stress that long drawn out court proceedings can induce.
- Mediation is most often suggested where children are concerned and is used in conjunction with the 1989 Children’s Act.
Because a mediator cannot give a couple any legal advice, even if he or she is a solicitor it is advisable for couples who go through the mediation process to seek the advice of their respective solicitors. Your solicitor will look over the mediation agreement to ensure that you have not agreed to something which might later prove to be to your own detriment. While solicitors should meet with their clients at each stage of mediation to advise them, at the same time they should not be acting in other areas until the mediation process is complete.