Mediation is a type of alternative dispute resolution that uses a neutral, qualified third party to assist the disputing parties in resolving their conflict. The third party, known as a mediator, guides the discussion and uses a variety of techniques in order to help the parties find their optimal solution.
Out of court settlements are encouraged by the family courts and the Family and Children Act 2013 establishes a mandatory meeting to gain information on mediation. This meeting is referred to as a Mediation Information Assessment Meeting (MIAM). There are a multitude of benefits when using mediation as opposed to litigation when going through a divorce including flexibility, privacy, and cost-efficiency.
How does mediation work?
Mediation is a process that takes place over numerous sessions involving the disputing parties, the mediator and often representation who help advise the parties. It is advisable for the disputing parties to have representation so that they can receive advice throughout the sessions. The mediator will have met each disputing party individually before the first session. This initial meeting is to ensure that both parties will be comfortable when negotiating with one another.
Once it is established that mediation is possible, the disputing parties will outline the issues that need to be addressed and the sessions will work on finding a solution to these. Once these have been agreed, the mediator will make a ‘Memorandum of Understanding’, setting the agreements out in writing. This document is not legally binding but can be taken to the court so that it can be made by the court into a binding order.
What are the benefits?
If the parties are open and willing to compromise and discuss their issues, the costs of divorce can be significantly lowered. Avoiding lengthy litigation not only will reduce the stress for both parties but can significantly reduce their costs. Alongside this, the procedure is in a relatively informal environment as opposed to the formal courtroom and it encourages amicable relations between the couple. Mediation is a process where the couples can have an open dialogue with the assistance of the mediator which can allow them to overcome any difficulties with communication that they have together. The independent third party can act as a bridge between the two couples so that even if they do not want to speak directly to one another, they are able to communicate effectively.
Mediation is a low-risk alternative method of dispute resolution and the success rate is high. This is in part down to the fact that the clients are fully involved in negotiating the outcome. The fact that the clients who opt to use it are often wanting an amicable divorce and are willing to discuss the issues is also a reason for this high success rate.
In the case of high net worth individuals who are going through the divorce process, mediation can often be a preferable option given the privacy that it allows. The process of mediation results in there being no records or transcripts which are available for others to read. Therefore, the process can be confidential and kept out of the public eye. If the divorce goes through the courts and to the Court of Appeal, the dispute and documents involved can become open to the public. This means that information about the finances, businesses and private life of the parties can be available for all to read and for the media to report on. This can be detrimental to both the parties personally and also for their businesses.
When will it not work?
Unfortunately, mediation is not always an option to couples who are divorcing. If the parties are not willing to cooperate or make an effort to come to an agreement, the mediation process will not be effective and will contribute to the length and cost of the divorce. Further, if there is any non-disclosure or an issue turning on a point of law or allegations of fraud, then mediation will not be the most appropriate method for the disputing parties. As Ayesha Vardag commented, “It’s great for couples who have transparency and are approaching it in a fair manner. But where there’s a lack of trust, it can waste a lot of time and money.”
Mediation is clearly a great alternative to litigation for couples who are going through a divorce and who are amicable and prepared to communicate and resolve their issues. This has been recognised by the Family Courts as a benefit not only to the disputing parties but also to prevent litigation going through the courts where it is not necessary. This therefore removes many cases from the family courts, allowing them to deal with more urgent cases where litigation is necessary.
However, mediation does not present an absolute alternative to litigation in divorce as there are many cases where it is not possible or, at least, preferable such as where the parties refuse to compromise or where non-disclosure is involved. As such, it is important for couples to carefully consider their situation and, if necessary, ask for a lawyer’s advice before starting off on either the path to mediation or litigation.
Aisling O’Reilly – Vardags
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