You may have noticed in the news recently that anyone wishing to issue court proceedings in any family law case must use mediation first. The government have cut back on legal aid to such an extent that most people can’t now receive funding. As a result they then pushed mediation as being the panacea for all cases, everyone will sit down nicely and discuss their case with their ex partner, this will avoid stressful court cases and it will all lead to a happy ending!
Anyway, back in the real world…
So what is mediation? This is a process whereby each party separately visits a mediator for an assessment session. If both parties agree that the process is right for them then they will meet together with a mediator present. Some mediators are legally trained and some are not. The job of the mediator is to help you to reach a settlement by way of compromise. The process can be used to deal with Arrangements for Children or financial matters.
Whilst I am not against mediation as a method of settling matters it is not right for everyone. I have seen the most surprising cases settle at mediation; parties who seemed to hate each other and who have gone on to broker a good deal between them.
However, Emmersons Solicitors Family Law Department has referred hundreds of clients to mediation.;Those on legal aid had no choice in the matter. The failure rate has been about 85/
In order for this process to work, you must both feel comfortable sitting in a room together. One person should not feel bullied into accepting a compromise. You should be thinking not just about today’s settlement but how that will look in ten years time when you are retired. Will you have sufficient money to fix your leaking roof at that stage or will you have left yourself poor in old age because you have tried too hard to reach a pleasant settlement? The law has evolved over the years to protect you.
The process should not be delayed because one party chooses to drag their feet. One of our client’s recently tried mediation. His wife would not discuss the relevant issues so he had to go back for a second meeting, she still refused to discuss their financial situation. He felt that he had wasted money on three sessions in the end but more importantly he had wasted another three months and was no further forward.
However, do not panic. If mediation is not for you then you can try other ways of settling your case without ever having to visit a court. The new law permits a wide range of attempts to settle matters. As long as you can show that you have genuinely tried to settle matters between you the court are likely to let you issue proceedings if you have reached a partial agreement or no agreement at all.
The press, and some mediators, are concentrating only on the specific mediation route. About 90/ of our cases never reach court. That means that most people are capable of reaching an out of court settlement. We can achieve that by negotiation by letter, telephone and email. We can offer meetings where both parties meet with their solicitors and discuss matters face to face. Some of our clients don’t want to be in the same room as their ex partner. Therefore we use separate rooms and the two solicitors negotiate and then discuss issues with their clients. You could also use the Collaborative Process which is detailed on our web site.
Ultimately however, this will all depend upon you and your ex partner. If one or both of you will not negotiate then a judge will have to make a decision for you. There are some cases which will need judgement in any event; for example If one parent wishes to move abroad with a child and the other does not want the child to go.
If you need advice contact us at Emmersons Solicitors and we will do our best to keep you out of court.