When a relationship breaks down, it can be a difficult time for the whole family. The parties involved may not know where to turn and the confusion can cause a lot of stress. Whilst it is sometimes necessary to take matters to court, the parties may be able to resolve relationship issues through less formal means — often through mediation.
When you must apply to court
If you seek a divorce or the dissolution of a civil partnership, you must apply to the court as only a court can grant this. If parties can agree on matters such as childcare and property division on their own, this can be an efficient and straightforward process and you may not even need to attend a court hearing.
If the parties cannot reach an agreement, however, they may need to involve a third party to help them work out an agreement that both parties can agree to. Going to court is often a nuclear option and many people find that mediation is faster, less stressful and less expensive than going to court. In most cases, the court will expect the parties to consider mediation first before they issue court proceedings.
Mediation allows parties to negotiate the terms of their separation or divorce with the help of a neutral third party, who is a qualified mediator. Mediation sessions are confidential. Mediation should:
- Facilitate a meaningful discussion between participants;
- Make sure participants feel safe and comfortable expressing themselves;
- Focus participants’ minds on the future as opposed to the past; and
- Help participants find a solution which works for them and their family.
Mediation is a voluntary process but a court will generally expect parties to have attended some form of mediation meeting before asking the court to decide on matters for them. In fact, anyone applying to the courts for assistance in resolving disputes about children or finances will be required to attend a meeting Mediation Information Assessment Meeting (MIAM). There are specific exceptions to this, however, for example if either party has made an allegation of domestic violence which can be supported with evidence.
Mediation and the law
When considering whether mediation is the best way forward, the parties should understand that the mediator will not be able to provide legal advice to either party as a mediator has a duty to act impartially and avoid any conflict of interest. It is often best for each party to seek their own legal advice before or between mediation sessions. This ensures that the parties’ own interests are represented and that they understand what they are agreeing to and what rights they may be compromising on.
It is important to note that arrangements which are discussed or agreed at mediation do not become legally binding in the sense of being enforceable in court. The parties may wish to instruct a solicitor to review the agreement reached at mediation and the agreement can sometimes be incorporated into a consent order to be filed with the court, making the arrangements binding on the parties.
Some mediators do not charge for the first meeting, or they may charge a lesser rate. Generally, practices charge by the hour, per session, or on a fixed-fee basis. You may also qualify for legal aid. If only one party is eligible for legal aid, legal aid can cover the first MIAM session for both of you. In most cases, mediation is less costly than court proceedings.
Going to court
If you cannot reach an agreement with the other party or mediation fails for any other reason you may have to resolve the matters through the courts. The mediator may be required to sign and certify your application form. Sometimes, mediation may not be appropriate and court proceedings may be the only option. This is typical when:
- There are international issues;
- There is domestic violence or the threat of such violence;
- The financial issues are particularly complex;
- There is no hope of otherwise reaching a fair financial settlement; or
- One or both parties are withholding information.
Although there is no legal requirement to use a solicitor and individuals can represent themselves at court, most people are unfamiliar with the court process. This may simply add to the stress during what is already a difficult time. Where the relationship is particularly acrimonious the parties may find it emotionally difficult to go to court alone and face their ex-partner. Instructing a solicitor or a barrister to represent you in court can help to alleviate the pressures and worries that you may have.
Court or mediation: which is best?
Because the agreements reached during mediation are made by the participants, they are often more likely to stick to them. But, while mediation may often be the most efficient and cost-effective way of reaching an agreement, it may not always be viable. Complex situations often require expert legal advice or the court’s involvement to be resolved. Parties may need to seek independent legal advice before deciding which route they should use.
If you require further information on family legal matters, please arrange to speak with one of our specialist family solicitors in Bristol. To find out more call 0117 962 1205 or fill out a contact form.