Divorce: Mediation should help married couples split up
A major shake-up of the family court procedures in England and Wales comes into effect on 6 April 2011.
All divorcing and separating couples will be referred to mediation to try and settle any disputes before being allowed to go to court.
Mediation is an alternative to lengthy and expensive court proceedings.
In a divorce or separation, an independent mediator will assist the parties to reach agreement about arrangements regarding children and money.
You should note though that mediation is not a forum to attempt reconciliation.
Quicker and cheaper
The government hopes that this plan will reduce the number of divorces which are dealt with by the courts.
Its assumption is that problems are often best resolved via discussion and agreement.
In addition to saving court time and expense, it will provide people with a quicker, cheaper and more harmonious way of dealing with disputes.
The rules make it obligatory to consider mediation by attending a Mediation Information and Assessment Meeting.
But they do not make it compulsory to actually commit to the process thereafter.
The new rules will not apply if there has been domestic violence within the last 12 months or if there are child protection issues.
In most cases a couple will agree the mediator between them so that they are both happy with the choice.
It will be up to the couples to decide in advance who will pay the fees, although it is standard for the couple to meet the mediator's fees equally.
The mediator will be able to advise whether costs can be met via public funding and Legal Aid.
Generally, mediation is considerably less expensive than litigation and, if successful, is quicker than the court process.
On average, successful mediation takes approximately three to five meetings.
Although a lot of family mediators tend to be lawyers, this is not a requirement.
It is sometimes helpful to have co-mediators, one of whom is a family lawyer.
However, it is important to remember that a lawyer mediator is not able to provide any legal advice.
Their role is to act as an independent third party and to remain impartial at all times.
Many people take legal advice from their own solicitor alongside mediation.
Where and when
Face to face meetings with both parties with the mediator present are the norm, unless relations are particularly acrimonious.
Meetings generally take place on neutral ground, usually in the mediator's office.
A lot of people are worried about being in the same room as their ex-partner when they split up.
At the beginning of the mediation the mediator will speak with each person alone to check they are willing to participate.
If one person feels uncomfortable with a face-to-face meeting it is possible to have a 'shuttle mediation', where the parties sit in separate rooms and the mediator moves between the two.
The mediator usually prepares an agenda to be agreed between the couple in advance to narrow the issues.
The mediator may also ask for copies of any relevant documents to assist him or her.
If the dispute concerns children the mediator may discuss whether it is appropriate to consult the children directly to find out their wishes and feelings, although the children must consent to this first.
Mediation can take place as often as the parties like and for as long as the parties are willing.
If either party feels at any stage that the process is not working, either has the option to apply to court.
A vital aspect of mediation is that all discussions are confidential.
Neither partner is allowed to use the content of the sessions as evidence in legal proceedings if the mediation fails and the matter goes to court.
If couples reach agreement at the end of the mediation it is advisable to instruct solicitors to draw up a consent order.
This will ensure that the agreement is legally binding and can be enforced by the court should either party breach the agreement.
Once the mediation is completed the divorce will still need to be 'rubber stamped' by the courts.
There is usually no need for each party to attend court hearings as this will be handled by your solicitors.
The courts will formalise the divorce through making the decree nisi and then the decree absolute.
The whole process generally takes four to five months from the start of divorce proceedings.
By removing the court room battles that often surround a divorce or separation, couples will save considerable amounts of money and time.
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