DIVORCE MEDIATION MASTERCLASS
Welcome to part two of three that covers the most commonly asked questions about divorce mediation. Check out part one here. Is there anything you’d like to know but we haven’t yet covered? Please do send in your questions and we’ll answer them in the third and final post.
Are agreements made in mediation legally binding?
Agreements made in mediation can form the basis of what is known as a ‘consent order’, which makes them legally binding. To do this, you will need to take your mediation agreement to a solicitor and they can draft a consent order, which needs to be approved by the court. Technically the court could challenge your agreement, but in practice, if you and your ex are both in agreement, and have taken legal advice, the courts are unlikely to challenge it.
What happens if my ex doesn’t stick to the agreement?
If your ex doesn’t keep to the agreement, your first step is to come back into mediation. Find out why he or she isn’t keeping to what was arranged, and consider amending the agreement so they are able to stick to it. Alternatively, if you have obtained a consent order on the basis of your agreement, you can return to court.
In reality, if you have both reached an agreement in mediation after discussion and negotiation, your ex is much more likely to stick to it than if it has been imposed on them in a court process without mediation.
How do we know if what we have agreed about our finances in mediation is fair?
The law that governs how assets are to be split on divorce is the Matrimonial Causes Act 1973 s25, together with relevant case law. The approach the courts will take is explained clearly in the booklet ‘Sorting out your finances when you get divorced’, available to download here. The booklet explains the law and gives examples of how it is applied.
The advantage of mediation is that provided you are both in agreement with your proposals and they provide for your children’s needs and your own to be met, then you can choose how you achieve this. If you go to court, then you will be relying on someone else to make these key decisions for you.
How long will the process take?
That depends entirely on the complexity of your case and the level of conflict between you. One answer we can give is that you can guarantee that it will take less time (and money!) if you reach agreement in mediation rather than through the courts or your solicitors. The process can take as little as a few weeks or it may take a couple of months. Much of the speed depends on you.
What training does a mediator receive?
We advise that you only use mediators who have been accredited by the Family Mediation Council. There are many mediators who practice having not met the standard and so you do need to check on your chosen mediator’s FMC accreditation. You can search the FMC database for accredited mediators near you by clicking here.
An FMC Accredited Family Mediator is the Gold Standard for family mediators in England and Wales. Achieving FMCA requires successful completion of an approved training course, which involves at least 60 hours of instruction normally spread over several months. In addition, mediators need a period of supervised practice leading to submission of a portfolio, which must be successfully assessed. Every three years mediators will need to submit information that demonstrates their continuing ability to practise, including how they have kept up-to-date and maintained their skills.
Polly Gavins has achieved FMCA status. In addition she has trained as a solicitor, worked on the board of a medium sized business and worked as both a counsellor and coach. For more information about Polly’s background, click here.
What happens if mediation fails?
Mediation doesn’t always work. Sometimes couples are just unable to negotiate with each other or engage effectively in the process. In such cases, your alternatives to mediation are to use solicitors to negotiate for you or to consider collaborative law, arbitration or the court process. To find out more about these options, click here.
Is it better to use a mediator who is also a family lawyer?
All family mediators will be expected to be knowledgeable about the relevant law and will be able to provide you with basic information. However, whether your mediator is also a solicitor or not, they will not be able to give you legal advice as they are required to remain impartial. You will be advised to use your own solicitor alongside the mediation process.
Mediation is a specific skill that is entirely different to the skills of a solicitor. A solicitor’s job is to get the very best deal for their client. A mediator’s role is to work with both clients to find a solution that works for both of them. Often solicitors who have trained as mediators find it hard to stop being solicitors. Mediators who are not also working as family lawyers tend also to have more experience of family mediation and they should have good relevant legal knowledge.
On the other hand, a few solicitors also have very good mediation skills and some might argue that there additional legal knowledge and experience is helpful.
At the end of the day, it’s important to choose an FMC accredited mediator (see question above) and it’s important that you like and trust your mediator. Whether they are a lawyer or not probably matters less as you will need to obtain legal advice anyway.
Did you find this Q&A helpful? Why not share this blog post on social media, or tell your friends about us.
You can also sign up to receive our regular blog posts full of useful tips and advice (see the box on the right hand side of the web page). And don’t miss part three of our divorce mediation questions series. To find out more about mediation, call Polly on 07706 513496 or email firstname.lastname@example.org.