Mediation vs court - Family Law Partners

Mediation vs court

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Family Mediation Week 2018

As mediators who promote a non-adversarial approach to divorce and relationship breakdown, we’re always encouraging couples to seek alternatives to the court route. But the traditional way can, sadly, be so entrenched in peoples’ minds as the way to end a marriage that it’s not always possible to find the right words to persuade people otherwise.

But what if we could show people the tangible benefits of using mediation over going to court? Not just emotional savings, but cost and time benefits too?

For Family Mediation Week, I wanted to share a case-study of a recent client of mine which achieves just that. I call this my ‘sliding doors’ client. What if he hadn’t considered and used mediation? What if he had ended up slogging the whole process out in Court from the off?

Over the past 18 months I have been advising a client who has experienced both the mediation and court process. He was dealing with two sets of proceedings – one about the children and one about the finances.

This blog is to show how the two processes were used, how they compare and the cost of each.

Mediation for children and financial agreements

My client had been separated from his wife for about 8 months when he came to me for a fixed fee interview. Prior to the meeting he had completed our online questionnaire to provide me with the background information. This meant that at the meeting we could focus upon answering his questions, giving advice and more importantly talk about the process options for resolving the differences between him and his wife. There was a disagreement between the two of them as to how much time their children should spend with him. They were also a long way apart in terms of what they thought the financial settlement should be.

At the meeting it was clear that my client was keen to negotiate a settlement and avoid contested court proceedings. I encouraged him to try mediation but while he was willing he said that his wife was reluctant to attend. I advised him to contact a mediator anyway and let the mediator contact his wife directly so she could hear from the mediator what mediation involved. It is so important for parties to both speak to a mediator to help them understand the process. Thankfully, the conversation with the mediator meant mediation started and within only two sessions (at a cost of approximately £500 for each client) the parties had the outline of an agreement. It is a feature of mediation that the agreement is not binding so that both parties can take independent legal advice upon the proposal.

What does it cost if it ends up in court anyway?

The wife took legal advice and unfortunately did not want to stick to the terms of the agreement. There was some negotiation between the husband and the wife’s solicitor following this but unfortunately the tone became rather heated and the wife issued a court application to deal with the finances. The parties attended mediation in November and December 2016. They finally reached an agreement through the court proceedings a year later.

As a result of the court proceedings the wife received a settlement which gave her a larger lump sum towards housing but she spent over £24,000 to achieve this. It took an extra year to resolve, £24,000 and has damaged the communication between the parties by going through the court proceedings.

The communication between the parties when they started mediation was not great but by entering that process with a professional mediator they were beginning to build a way forward.

Returning to mediation

My advice to my client when it became clear that the terms of the financial proposal were not going to be followed by the wife was to return to mediation and relook at the terms. Considering it had only taken them two sessions to get to a set of proposals they would have probably needed 1 or 2 further sessions at most at the cost of £500 each and would have continued to build upon their communications.

Alongside the financial proceedings the arrangements which had been agreed at mediation about the children were not kept to. The Father therefore issued his own application about the children in the court. In this situation he was the one reluctant to return to mediation as he was concerned that even if they reached agreement it would not bind the parties. A court application was started and at the first court appointment the Cafcass office met with the parties before they went into the court room. She recommended they return to mediation and that this should include the children being seen by the mediator. Both parties agreed to this approach and again, within two sessions of mediation plus a session where the mediator met with the children, they were able to reach agreement.

Mediation alongside court proceedings

As mediation took place alongside the court proceedings the agreement reached about the arrangements for the children was able to be submitted to the court and be embodied in a court order. This can be difficult with freestanding mediation about only the children as it is a principle of the Children Act that if parents are in agreement about the arrangements for their children then orders should not be made. However, in many circumstances it is now possible to ask for the court to embody the agreement reached in mediation in a consent order, as long as it is explained why.

Although my client started proceedings about the children by still being open to alternative process options alongside the court process the parents were able to reach their own agreement about the arrangements for the children and not have this imposed upon them by the court. They did not have to give evidence in the courtroom.

They resolved matters within 4 months, rather than the at least 6 – 9 months it would take through the courts. And what about costs? My client spent about £4,000 in legal costs and another £700 in mediation costs opposed to £10,000 for a full set of contested court proceedings about the children.

Mediation is an incredibly helpful alternative to going to court. It works best when the parties both seek legal advice alongside the mediation process. The advice enables the financial proposals to be finalised into terms which are appropriate for both parties. Mediation enables the parties to consider how the arrangements made in mediation can be recorded to create a binding agreement. It helps preserve a working relationship between parties which is very important when there are children. Mediation is considerably cheaper than going to court and even with legal advice alongside the costs should be a third of fully contested proceedings.

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