Mediation – Is it right for you and what are the alternatives when the distribution of the matrimonial finances are in dispute?
It has recently been reported that there has been a large decrease in the number of separating couples accessing publicly funded mediation following changes in legal aid. The Government were hoping that the cuts in legal aid would encourage separating couples to pursue mediation rather than spend time and money in battling their case at court. Statistics from the Ministry of Justice show that the number of couples starting state funded mediation fell by a third between April and Sept 2012 and the same period in 2013 and 2014.
I always pursue the option of mediation at my initial meeting with a client and provided it is suitable for them, I am happy to provide more detailed information. If there are no safety issues apparent and no domestic violence issues are present, then you should at least attempt one mediation session to see if the issues in dispute can be narrowed and it give you a chance to air your thoughts on the relevant issues. This is communicated directly to your spouse/partner, in the presence of a mediator. If you are thinking of divorcing or have issued divorce proceedings at court, then you should first consider mediation in an effort to address disputes in matrimonial finance matters and/or children arrangements.
Where finances are concerned, it is beneficial for both parties to have received some independent legal advice from a family law solicitor, prior to attending any mediation session, so that you are fully aware of your potential claim when it comes to a distribution of the matrimonial assets. The mediator will also expect you to attend the mediation session with some level of disclosure as to your up-to-date financial position, in order for the mediation session to be beneficial. It must also be noted that the mediator does not decide on how you should settle your matter, but simply assists you both in coming to an agreement. Furthermore, if you do not wish to face your partner/spouse in a mediation session, then arrangements can be made by the mediator for you to occupy separate rooms and the mediator will pass between you, but this arrangement will be dependant upon the mediator instructed.
If an agreement is reached between you and your partner/spouse, during the mediation process, then it will be recorded by the mediator in an agreement. That agreement is not legally binding however the parties can take the agreement to a family law solicitor and ask to have the agreement formally drafted into a consent order and then filed at court (once divorce proceedings have been issued at court). It can then be approved by a judge and once the consent order has been approved and sealed by the court, it is a legally a binding agreement which is full and final.
In early January 2014, the new Family Justice Minister, Simon Hughes, Family Justice Minister emphasised the importance of mediation to the divorce process. The government is introducing major changes designed to further encourage separating parents and couples to consider attending mediation to resolve disputes around divorce and separation, as an alternative to immediately issuing proceedings at court.
In the event that you decide that mediation is not suitable for you or if mediation has failed, then provided a family law solicitor has been instructed by at least one party, then there is another option available to you as a final attempt to settle matters without the courts intervention, namely entering into voluntary financial disclosure before negotiations via correspondence is entered into. However, whilst pursuing voluntary financial disclosure with a view to coming to an agreement about the finances with the involvement of solicitors only, you may find that it is not always cost effective or time efficient to pursue this path if matters do not settle, because the same process will need to be undertaken once an application to court is issued. It is worthwhile attempting to settle matters via the voluntary disclosure route without the courts intervention, but it’s crucial in order to save costs and time, to recognise as early as possible whether matters will settle without the intervention of the court or not and this will depend upon the manner in which your partner/spouse is responding. If you think that matters have become complicated or your partner/spouse is just not providing full, frank and clear financial disclosure or there is unnecessary delay, then an application to court should be made to court for financial remedy as soon as possible, to save time and costs. It is better in such circumstances, to spend your legal fees on pursing the matter at court where there are strict deadlines to adhere to and where the court will not accept vague responses or inaccurate information from either party.
If you want to deal with your matrimonial matter in a time and cost effective manner, then find out the options available to you please contact our family law specialist solicitor, Mrs Satvinder Sokhal on 020 8280 2710. We can assist you with any matrimonial related matter.