Family Mediation Versus Litigation
Sally Clark has written a wonderful article explaining mediation versus litigation. Sally Clark is a trained direct child consultant qualified to speak to children where appropriate as part of the mediation process.
Open a newspaper in early January and there are lots of articles about how this month is a divorce lawyer’s mecca. The media predictably quote that more instructions are given for divorce on the first working day after the New Year than at any other time of the year.
It is fair to say that people re-evaluate their circumstances and decide to make a break/change at certain times of the year and the New Year is one of those.
How separation is achieved and the method by which a separated couple resolve issues as to finances associated with their relationship or child related concerns will dictate the path they take towards their the future. It is therefore so important that options are explained and choices are presented at the very beginning so that when looking into the dark tunnel ahead individuals can see a brighter future by understanding that they do have options.
When thinking about separation and divorce there are some immediate pressing questions which in our experience as family solicitors and mediators are often asked. We understand that there can be very different responses depending on the path parties choose. We thought it would be helpful to look at two processes and how our response to common questions would differ based on (a) a traditional litigation process and (b) the family mediation process.
1. How long will it take to sort out the issues in dispute?
(a) It first of all depends upon whether contested Court proceedings are issued or not in relation to issues concerning finances and/or children. If Court proceedings become necessary then the process can take anywhere between 4 months if an early settlement is reached up to 2 years depending upon the number of hearings required, the Court directions given and the amount of any expert evidence required.
(b) The mediation process starts with each party attending an assessment appointment and providing both are willing to mediate and mediation is assessed to be suitable then a joint session can be arranged. The process will typically involve 2 – 4 mediation sessions and can be concluded in 2 – 3 months. In financial mediations, a tailored form of financial disclosure is exchanged. Third party experts can be brought in to facilitate the process where required and agreed by the parties and the mediator.
A Certified Divorce Financial Analyst™can be utilized as a third party and bring tremendous value to the mediation process by helping the couple to achieve an equitable settlement with the insight of how the settlement will impact their lives in the future.
2. Is one person to blame?
(a) Due to the nature of litigation proceedings, it tends to engender blame and has the effect of positioning parties against one and other.
(b) Mediation is about working with the other party to and focusing upon common interests to try to reach a workable solution for the future.
3. How much will it cost?
(a) Contested Court proceedings for financial and/or child arrangements (i.e. proceedings about where children should live and when they should spend time with the other party) are expensive and typically cost upwards of £5,000 – £10,000 per party.
(b) Mediation is a cost effective option and many services offer fixed fees for each session. For a typical process involving an assessment, two joint sessions and the associated documentation parties would each be looking at costs in the region of £750 to £1,000 plus the costs of supporting advice from their solicitors as part of the process. Charges tend to be a fraction of the cost of contested litigation proceedings.
Legal aid remains available subject to eligibility criteria being met for the family mediation process. The Legal Aid Agency will cover the cost of both parties’ assessment meetings and the first joint session if one party is eligible for public funding where the family mediation service holds a Legal Aid Agency franchise.
4. Do I have to go to Court?
(a) If matters cannot be sorted out between solicitors or via the collaborative law route and proceedings for financial remedy and/or child arrangements are issued then parties may need to attend Court. Typically Court proceedings are a multi staged process. If an agreement cannot be reached during the process then a Judge or Magistrates will make a final decision. It is no longer possible however save in exceptional circumstances to issue Court proceedings without attending an assessment appointment for family mediation and learning about other forms of dispute resolution.
(b) If parties reach a successful outcome in family mediation then the mediators prepare the paperwork and send this to the parties and their solicitors who create a legally binding version of the agreements reached within mediation. This is then submitted to the Court for approval without parties have to attend at Court.
5. Where will our children live and how we do sort that out?
(a) If separated parents are unable to resolve matters on a voluntary basis and are unwilling to mediate and/or mediation is assessed as unsuitable then Court proceedings can be issued under the Child Arrangements Programme. Children may be spoken to by a CAFCASS officer to ascertain their “wishes and feelings” or in some circumstances the Court may order a report into the welfare of the children. If parents are unable to reach an agreement during the process then ultimately a Court will decide the practical arrangements for the care of the children.
(b) The process of mediation focuses upon parties establishing a dialogue as parents and working together for the benefit of their children going forward. In certain circumstances specially trained accredited family mediators can consult with children on a confidential basis as part of the mediation process so that children’s voices are heard and parents can then listen to concerns and work together to minimise those going forward.
6. Who decides how financial issues are resolved?
(a) If matters cannot be resolved via negotiations during the Court process then a Judge will decide upon an appropriate financial settlement.
(b) Parties remain in control of the process. The mediator does not decide what is going to happen but rather facilitates discussions between the parties to generate and consider options and to come up with their own resolution as to the financial matters associated with their relationship.
As family lawyers and accredited mediators we assist individuals under a variety of methods. There are occasions when family mediation and/other forms of dispute resolution methods such as collaborative law or round table meetings are simply not tenable and the assistance of the Court is required. For the majority of separating families however the option of retaining control over their own futures and minimising costs is a very attractive option and one which is embraced within the family mediation model.