6 benefits of using mediation on divorce rather than going to court

For many divorcing couples, mediation is the last thing on their minds. If the relationship has turned toxic, they may be relishing the prospect of going to court, whatever the financial or emotional cost may be. Tempting as it may be to fight their battles before a judge, they could be far better off settling their issues before a mediator. In this blog, I look at what you can expect from mediation and at some of its advantages compared to having your day in court.

The role of the mediator is to facilitate discussion between you. They are not there to make decisions but instead will act as an impartial guide.

Mediation is not compulsory for divorcing couples. Having said that, before proceedings relating to children or finances can be issued, the parties will (except in certain situations) need to attend a Mediation Information and Assessment Meeting (MIAM). This idea of this meeting is to see if the parties can use mediation as an alternative to going to court.

What can you expect from mediation?

If you and your spouse decide to go to mediation, what can you expect?

The first thing to recognise is that the aim of mediation is not to sort out problems in your relationship. Its purpose is to seek agreement on issues relating to your finances and children (if you have any). The role of the mediator is to facilitate discussion between you. They are not there to make decisions but instead will act as an impartial guide.

Mediation usually takes place over a series of sessions of around one and a half hours, often after the mediator has spoken to or met each party individually. If you manage to reach agreement at mediation, this will be set out in a Memorandum of Understanding. This is not legally binding but can be used by your lawyer to set out a binding order.

Lawyer assisted mediation

Mediators cannot give legal advice. For this reason, it is sometimes useful for the parties to enter into lawyer assisted mediation, where each party has their lawyer present. This can be useful if there are difficult legal issues or one or both of the parties is anxious about meeting their spouse without legal support.

In lawyer assisted mediation, the mediator runs the process. Mediation is flexible so there are no hard and fast rules about how it works but often it involves an initial meeting with everyone in the same room to outline the issues at hand. The parties then go into separate rooms and the mediator will shuttle between them to discuss potential solutions.

Sometimes the parties will come together at the end to finalise everything and it is even possible for the lawyers to record the agreed terms on the spot. As legal time can be expensive, lawyer assisted mediation usually takes place over one or two sessions rather than a series of sessions.

The benefits of mediation

1.Cost. Mediation is far cheaper than going to court, which usually involves a lot of legal time and, therefore, expense. In one recent case, the parties spent nearly £1m in legal fees fighting over a divorce pot worth £3.2m. When the judge found out about these costs, he said: "I must confess to have been almost lost for words when the scale of this madness was revealed to me." I should add that the extent of the legal costs in this particular case are exceptional and not the norm.

2.Greater flexibility. Mediation allows the parties to explore imaginative and flexible solutions to the issues at hand. For example, the court may take a black and white view about the family home and order that it needs to be sold in order to release equity to both parties. However, you may agree in mediation that it would be better for the children and wife or husband to remain in the family home and for the equity due to the wife or husband to be deferred, repaid over a period of time or for him or her to receive other assets instead. Similarly, you may agree flexible childcare arrangements that work far better for both parties than more rigid ones imposed under a court order.

3.The ability to have your say. It's human nature to want to put your point of view across, especially when emotions are running high. Court proceedings are highly structured and rarely offer this opportunity. Mediation is a safe space in which to air your frustrations and concerns. Often this is exactly what people need to do before they can move on and approach contentious issues with a clearer, more pragmatic, head.

4.Enables you to put your children first. Going to court usually involves acrimony and stress, neither of which are conducive to positive emotions. Needless to say, when parents are involved in a bitter dispute it can be extremely harmful to their children and the longer it goes on, the worse it can be. Mediation can avoid this as it offers a supportive environment in which you can try to move past your grievances and put your children's welfare first.

5.Achieve closure. Most people going through a divorce are best advised to move on as quickly as possible and start rebuilding their lives. If you are waiting for a court date or if hearings get delayed your divorce may drag on. This is not the case with mediation, which can usually be arranged quickly.

6.Give you more control. One of the most stressful aspects of divorce is that you feel like your financial situation and future childcare arrangements are beyond your control. Once you go to court you are in the hands of the judge and have no direct control over the outcome. Mediation allows you to be a party to the decisions you make, making it easier to accept the terms and move on.

It is important to state that mediation is not always successful. It is an option but by no means does it guarantee a successful outcome.

If you would like to discuss mediation in relation to divorce, please Mark Goldstein now at [email protected].