How divorce mediation could end your relationship amicably
This is the final part of my Divorce Mediation Questions series, covering the remaining seven FAQs. Have we missed anything vital? Do send in any questions you may have and we will ensure they are covered in a future post.
- What happens if my partner won’t attend mediation?
Mediation is voluntary and no one can be forced to mediate if they do not wish to do so. But the good news is, it is possible to explain more about mediation and this can change their mind. We do this by inviting them into a private meeting so they can find out more about the process and if it’s right for them.
But ultimately, the mediator cannot force anyone to mediate.
- Do I need a solicitor if I am in mediation?
There is no legal requirement that you use a solicitor, but we would strongly recommend that you do. This is because you will be making decisions in mediation that will impact the rest of your life and a mediator cannot tell you if the proposed agreement is fair for you, or whether you should agree with it.
We usually recommend that you take legal advice at ‘proposal stage’ in the mediation process and once a draft agreement has been reached.
Your solicitor’s costs will be much lower if you are using mediation because your solicitor is not managing the whole process, just giving you specific advice when required.
- How does mediation fit into the divorce process?
Obtaining a divorce and agreeing your finances and arrangements for your children are two separate processes, although they usually run alongside each other.
In order to get divorced, you need to file a divorce petition. This means applying to the court for permission to divorce and to show reasons why you want the marriage to end. Once approved by the court, it issues what is known as a ‘decree nisi’. Six weeks and a day after the decree nisi, you may apply for a ‘decree absolute’, which formally ends the marriage.
Usually mediation takes place alongside applying for the decree nisi, and then a court order to finalise the arrangements is obtained before applying for a decree absolute. Your solicitor will be able to advise on the risks of applying for a decree absolute before obtaining a court order covering your finances.
- What about if we weren’t married - can we still use mediation?
Yes! You can still use mediation to agree your financial and children’s arrangements if you were co-habiting and not married or in a civil partnership and not married.
- How legally enforceable are agreements made in mediation?
Agreements made in mediation are not legally binding and therefore are not legally enforceable. However, you can ask a solicitor to draft something known as a ‘consent order’ based on the agreement reached in mediation, which you can ask the court to approve it. If your agreement is made legally binding and one of you breaks the agreement, the other will need to return to court to enforce the agreement. However, when both parties have been involved in the discussions and negotiation via mediation, then it is less likely for either party to break the agreement. If the arrangements don’t work out as planned, it is often a good idea to return to mediation initially to work out what has gone wrong. For this reason, many mediation agreements include the option to return to mediation at a later date, if required.
- Can older children be included in the mediation process?
The voice of the child is an important part of the mediation process. The needs of the children will always be discussed in mediation. However, if the children are old enough and both parents and the mediator agree that it is appropriate, then the children may be involved in the mediation process. Child inclusive mediation involves a mediator seeing the children on their own, away from their parents. The mediator agrees with the children what feedback may be given and this is then relayed to the parents in mediation. The children do not make decisions but just give their views. The mediator will need to feel confident that the parents will listen to the views of the children and will not attempt to influence them or blame them. Your mediator will be able to explain further about how the process works.
- Is mediation confidential? If it fails, will the records be used in court?
Mediation is confidential and the mediator will not disclose any information shared without the client’s consent except where there are safeguarding concerns, where there is a duty to report under the Proceeds of Crime Act 2001 or where the mediator is ordered to do so by the court.
If mediation fails, the records remain confidential and will not be used in court without the agreement of the parties.
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