Mediation can help families in various situations, such as considering options for separating the matrimonial finances, or the child arrangements should a relationship breakdown. Family Mediation can also continue to assist families, even after separation, for example if arrangements that have been made previously need to change when the children of the family are older, and arrangements need to be altered to suit their needs.
The outcome of family mediation is not automatically legally binding, however outcomes can be made legally binding through a subsequent legal process, such as by turning them into a court order or a formal legal agreement. This ensures that the terms agreed upon during mediation are enforceable.
Understanding family mediation
Mediation is a voluntary process, therefore all individuals participating will agree to engage in the mediation process and sign an agreement to mediate at the first joint session. The role of the mediator is to remain neutral and provide a safe environment for constructive discussions to take place, allowing families to explore the different options and avenues available to them. To assist with the discussions, the mediator can provide legal information, which provides participants with the information they require to make informed decisions about their outcome and future.
Legal framework of family mediation
In April this year, the Family Procedure Rules were amended to try and promote out of court discussions between couples. Read more about the changes in my previous blog here . Prior to making an application to the court, you will now need to fill out a form setting out your views regarding Non-Court Dispute Resolution (NCDR). NCDR does not include just mediation, it can also include other options such as collaborative law, arbitration and private out of court hearings, which mirrors the court process outside of a court setting.
The reason for the compulsory additional step, is to ensure that NCDR has been considered, which means that failure to engage in NCDR, without a valid reason, may lead to the court considering whether a costs order should be made. A Judge may also make the decision to postpone the proceedings if they consider NCDR may be a more appropriate way of dealing with matters.
If you do proceed with an application to the court, it is important to be aware that the court can make orders that are legally binding, whereas the outcomes in the mediation process are not.
Binding nature of mediation agreements
If an outcome is reached at mediation, the mediator will draw up the necessary documents to allow each individual to obtain independent legal advice, should they wish to do so. The outcome can then be placed into a legally binding document if this is a step that the participants wish to take.
Limitations and exceptions of mediation
As the outcome in mediation is not legally binding, and the discussions are without prejudice, this means that the outcome that you reach in mediation will need to be converted into a legally binding document should you wish for the outcome to be enforceable. As the discussions in mediation are without prejudice, this allows you to discuss options with your former partner without being held to it at a later stage if your situation is not resolved.
Benefits of legally binding mediation over court proceedings
There are many benefits of opting for mediation. Mediation is a form of out of court dispute resolution, which means that it is often a quicker and more cost-effective route to take than negotiations through solicitors or court proceedings. There is one hourly rate to meet, and participants are not held to court timetables or delays. Further, mediation is also often less stressful than negotiations through solicitors or court proceedings, as the mediator will be present throughout the discussions and assist in helping families to talk openly about matters in a confidential safe space. The mediator will also be able to ensure that the participants have the opportunity to speak and be heard, a voice which can often be lost or misconstrued in the Court process or in negotiations via solicitors.
How to ensure your mediation is legally binding
The Mediator will draw up the necessary documents to allow each individual in the mediation process to obtain independent legal advice. The outcome can then be placed into a legally binding document.
Embark on a journey towards amicable resolution in family disputes with SE-Solicitors. We provide expert knowledge and personalised guidance in family mediation. Start your journey with SE Solicitors’ Family Mediation Services for a resolution focused way forward.