Why more UK families than ever are turning to mediation
When a family breaks up, it can be hard, but there are different ways to deal with things like money, property, and problems with your children that are related to family law. This is a guide to help you understand how you might be able to solve your problems without going to court by using alternative dispute resolution (ADR).
Mediation, collaborative law, and family arbitration are all ways to settle a dispute without going to court. After a relationship ends, it’s important to get legal advice before making any decisions about money or your children. Check out our other legal guides on topics like divorce, how to handle money when a marriage ends, and raising children.
It’s important to know what mediation is, how it works, and if it will help you.
Mediation won’t work if your child is in danger, like if there are claims of sexual or physical abuse, or if you have been a victim of domestic violence, or if there is an imbalance of power in the relationship, like if you have a disability or don’t speak English as your first language.
Mediation is a voluntary process in which you and your ex-spouse talk to a trained mediator (usually face-to-face, but you can ask to be in a separate room from your husband/ex-spouse) and try to come to your own agreements. You should always talk to a lawyer about any deal you make with your ex-partner. Even if the mediator is a lawyer, it is not their job to give you legal advice. Mediators should not take sides and should be fair. In some cases, if it’s appropriate, mediators may give both sides general legal information during the session, but they should stay neutral. The mediator is there to help you and your partner talk, and it is his or her job to tell each of you to get your own legal advice, either during the process or afterward.
Mediation is private and can’t be used against you in court. Details talked about or agreements made during mediation can’t usually be shared or used against you in future court hearings. Any information about money that comes out of the mediation is public and can be used outside of the mediation setting. Agreements made in mediation are not legally binding. The agreement is flexible and can be changed to fit the needs of the parties. It also means that neither party will get in trouble if they don’t follow the rules.
A consent order can turn the terms of an agreement you reach through mediation into something that the law has to follow. A consent order is a legal document that outlines what you agreed to during mediation. It is usually written by a lawyer and sent to court for a judge to sign off on. Once it has been signed off on by a judge, it will have the same legal force as a court order. Make sure you get legal advice from a family law lawyer before you sign a consent order. If your divorce mediation is about money, you should make sure your agreement is legally binding by making a consent order or a Deed of Separation (see our guide to financial arrangements after marriage breakdown).
For mediation to work to settle finances after a marriage has ended, both parties must share all of their financial information. This is to make sure that everyone gets a fair deal (see our guide to financial arrangements after marriage breakdown). Before going to mediation, it’s important to talk to a lawyer.
Mediation can help a lot if both people are willing to be reasonable and willing to find a middle ground. If mediation works, it can make it much cheaper to figure out how to handle money and children after a relationship ends. Mediation can work very well, but it doesn’t always work.
Meeting for information and evaluation about mediation (MIAM)
Before you go to the Family Court, you must attend a mediation information and assessment meeting (MIAM) for most types of cases. This includes requests for financial orders and orders about how to care for children.
A MIAM is a meeting with a mediator to find out if your problem is one that can be solved through mediation and to get information about:
mediation, other ways to solve your problem without going to court, and if mediation or other ways of solving problems are right for your case.
You can go to the MIAM with the other party or on your own.
If one of the exemptions applies to you, you do not have to go to an MIAM. The following are among the exceptions:
- You have proof of violence in the home. For example, he was convicted of domestic violence, there is or was a no-contact order against him within the last two years, or you have a letter from your doctor. For more information, call our advice line;
- If the application is about a child, the local government gets involved with the family to make sure the child is safe.
- You already went to an MIAM or filled out an application to confirm an MIAM exemption in the last 4 months;
- The application must be made quickly because: there is a risk to your life, liberty, or physical safety, or that of your family or home; you will face significant hardship; or any delay caused by attending an MIAM would increase the risk of harm to a child, the risk of unlawful removal of a child from the United Kingdom, or the risk of unlawful retention of a child who is currently outside England and Wales; or there would be problems with the child’s education.
- Other reasons could be that you don’t know how to get in touch with the other person, you need to apply without telling him, or he is in jail.
If none of the exemptions apply or if you don’t have the required proof of domestic violence and none of the other exemptions apply, you will have to go to an MIAM. The mediator might decide that mediation isn’t right for your case. If that’s the case, the mediator will sign a paper saying that mediation isn’t right or isn’t happening.
You should ask the court for help if:
You go to an MIAM, and the mediator says that mediation isn’t right for your case, or that you went to an MIAM, but mediation isn’t happening; or One of the exceptions to the MIAM rule applies: you and the other person have tried mediation, but it didn’t work or broke down.
If you don’t have a job or don’t make much money, you may be able to get legal help for mediation, which means you won’t have to pay the mediator. If you can afford it, you may also be able to get legal aid for a limited amount of independent advice on the issues you are mediating. If the other party can get legal aid but you can’t, the Legal Aid Agency will pay for both of you to go to the MIAM (together or separately).
Family law based on cooperation
Collaborative family law can be used to work out money issues after a divorce or to make plans for children. In collaborative family law, you try to avoid going to court and save money by negotiating with your ex-spouse in a series of face-to-face meetings and through letters. In collaborative law, you go to these meetings with your lawyer, which is different from mediation. This means that you and your ex-partner will negotiate with each other with the help of your lawyers, who must both be trained collaborative lawyers. Psychologists or counsellors can also be asked to come to the meeting to help you and/or your ex-partner come to a decision.
If you can come to a deal, your lawyer may write up a consent order (see above). If you can’t come to a deal, you can still ask for financial help or a child arrangements order, but you’ll need to talk to a different lawyer because you can’t use the one who helped you negotiate.
Collaborative law can be very expensive, so it’s important that your lawyer sends you bills regularly and that you keep track of the costs. You should also think about whether you and your ex-partner or ex-husband will be able to come to an agreement through collaborative law. If you can’t come to an agreement through this process, you will have to go to the Family Court and either hire a different lawyer or do it yourself. If you hire a different lawyer, you will have to pay more.
If you have been a victim of domestic violence, you can’t use collaborative law to solve problems with money or your kids.
For more information, visit https://familymediationchoice.co.uk/locations/