How can Solicitors help with mediation?

There is an ever increasing emphasis on non-court dispute resolution, which you might see referred to as NCDR or ADR. In essence this means resolving your family issue using a method other than an application to the court. Traditionally this meant mediation but a recent change to the family law rules has extended this to include arbitration, neutral evaluation, collaborative law as well as mediation. Basically, these are all types of alternatives to asking a Judge to make a decision for you. The recent change in the rules means that anyone with a family law dispute (child arrangements, financial issues on divorce etc.) must explore and consider alternative methods of resolving that dispute before asking the court to help them. There is good reason for this. The Court system is seriously backlogged, the process is uncertain, it takes control away from the family concerned and often damages the relationships of those individuals involved. 

When we meet with clients for the first time we often suggest mediation as a sensible and cost effective way of trying to reach an agreement, whether that is in relation to arrangements for children or the division of your assets. So, if you are using mediation why might you need a Solicitor as well?

1. Pre-Mediation Advice. Particularly in relation to financial matters it can really help to understand what your rights are, what a reasonable outcome might look like and to alert you to any other issues in your case that might need the input from other professionals. For example you might benefit from a pension report, a valuation of a business, tax advice etc. 

2. Advice as you go along. Advice in between mediation sessions can be really valuable. It is quite likely that trickier issues might arise during the course of your mediation sessions. A mediator cannot give legal advice. They act as an impartial third party who is there to facilitate the discussions. Accessing some legal advice about how a court might approach certain issues can help you make suggestions or proposals during future sessions.

3. Sense-check your options. As you work through your mediation sessions (there is often more than one) it can be helpful to ask a solicitor to comment upon some of the options that are being explored. What are the advantages and disadvantages of certain choices. Are they legally possible? Our experience can alert you to potential pitfalls in the solutions that you are considering. 

4. Objective overview. A relationship breakdown, whether recent or not, can be extremely painful. It is a very big ask for the couple involved to be objective and ‘business-minded’ when they are trying to manage the dissolution of their relationship. The emotions associated with grief, such as anger, guilt, denial, sadness, can play a role in your decision making. Having an experienced and objective hand guide you through the mediation process can ensure that you are looking at solutions that are in your best interests and those of your children. Particularly in relation to financial negotiations you will want to ensure that whatever has taken place between you in the past, that you can each move forward independently and securely.

5. Direct Involvement. Traditionally, within family mediation, solicitors have not attended mediation sessions with their clients. However, as mediation has evolved there are certain mediators who are qualified to offer what is referred to as hybrid mediation. This is a form of mediation where Solicitors are present with their clients. It can be an extremely effective process resulting in agreements not only being concluded on the day but actually drawn up and signed. This type of mediation can be very helpful for complex cases and those which involve significant assets.

6. Save you money. In the first instance we can advise about your legal rights. This helps you to understand your position, iron out any misunderstandings or misconceptions so that you set off on the right foot within the mediation process. Avoiding unnecessary arguments saves time and therefore the cost of extra mediation sessions. Having legal advice in between mediation sessions also means that you don’t end up leaving mediation with an agreement which is likely to be unfair or legally impossible. After you have worked hard together in mediation to reach an agreement it can be devastating for that agreement to fall apart once it is scrutinised by a Solicitor or even the Court. The precious goodwill that has been built by you both during the process will inevitably be damaged if one of you decides that having taken legal advice you cannot proceed with the agreement.

7. Formalising your agreement. Once you have finished mediation and, hopefully, have an agreement (referred to as a Memorandum of Understanding) you will need to have that agreement written up and then signed by each of you outside of the mediation process. This might be a Consent Order (matrimonial finances or children), separation agreement, cohabitation agreement or a pre or post nuptial agreement.

If you would like to talk to us about receiving support alongside the mediation process simply give us a ring or submit an enquiry online.