I often meet with people who are sceptical of the mediation process and how this can help them in their particular set of circumstances. They feel their ex either wont listen to them or communicate or that things are so tense between them that only a court could help.
As a practising Lawyer Mediator for over 20 years I can confirm there are situations where Mediation simply isn’t appropriate and only a court can resolve those disputes. Whilst I am a huge advocate for mediation I am also the first to say if mediation is not appropriate and we have some fantastic family lawyers who would be there to help you. However in the majority of cases if two people are seeking an outcome in a fair and reasonable manner , although they may differ as to what this means, then mediation is an option.
Sometimes a client believes the court system is the only way they will get a fair, just and timely outcome. They understand the benefits of mediation but they “know their Ex and it just wont work for them”. They have a vision as to how the court system works and feel that is the best avenue for them to pursue.
Mediation is of course a voluntary process and only an option and therefore it is your right to decide how you want to resolve your disputes.
However once I explore what their expectations are of the court system there is soon a realisation that perhaps retaining ownership and control of their decision making process may well be the best option for them and elect mediation.
However there are also others who perhaps may have an unrealistic expectation of the our courts and what it can do for them, looking at our justice system through, what I call, “rose tinted glasses”. Where a client has never had a court experience and has a vision as to how their case will be managed.
So I thought it would be good to explain some of our court processes and systems and how mediation can help to overcome these.
One of the biggest and most publicised issues raised recently in our Family Courts has been our Divorce system. The main legislation dealing with Divorce is the Divorce Act 1969. Whilst there have been some amendments along the way the main body of the legislation remains and is now rapidly approaching its 50th Anniversary, probably older than the majority of people using it!
The aim of the Act was to allow one party to seek a dissolution to the marriage where justified such as conduct or Adultery ie blame, otherwise you had to wait for time to lapse with a minimum period of 2 years. This is almost common knowledge now a days, Google can certainly tell you this.
However in 2015 Mrs Owens petitioned for Divorce against her Husband on the basis of his unreasonable conduct. Mr Owens appealed against this. In 2018 after numerous appeals and thousands of pounds it was decided Mrs Owens had not given sufficient evidence to satisfy the legal requirement for Unreasonable conduct and her petition was not allowed.
This left two people in a very unhappy position and still married where at least one of the parties did not want to be in that relationship. Can you imagine being told you have to remain in a relationship against your will!
This did cause an uproar in the legal community and petitions being lodged , and not for the first time, for Divorce reforms toward no fault divorce. I am pleased to confirm that the Government have listened to this and we are now staring a journey toward such a change but we don’t yet know when these changes will come in.
Research published earlier this month by the Nuffield Foundation reinforces the case for reform of what they call “an overly complex divorce system”. Taking Notice, written by Professor Liz Trinder and Mark Sefton, found that the current system fuelled conflict and disadvantaged people who represented themselves and those alleging abuse as grounds for divorce.
“The current system is complex, confusing and creates unnecessary conflict. The proposal to allow divorce only after a ‘cooling off’ period will help families focus on the future, not on an unhelpful ‘blame game’. Our new research also finds that the Ministry of Justice is right to propose removing the outdated right to defend a divorce.”
This is just one example as to how our Laws sometimes can be Dickensian and Obstructive. Mediation however can help you to both focus on the future of your relationship and if this is to Divorce understand the laws behind the legislation to prevent the kind of experience Mrs Owens has endured. Other examples are simply from a procedural perspective.
If you are married and wish to resolve your financial affairs then if you were to issue proceedings today you wont have a hearing date for 4 months. This is simply due to timetabling of matters which need to be done prior to the hearing date. Lawyers will try and help you to resolve matters amicably prior to any proceedings being issued in the hope you can avoid a court process but this could simply add to the delay in progressing matters.
In mediation however on average it takes 3-4 sessions to conclude a Property / financial Mediation. The timeframes for this will depend upon you and your needs but on average could take between 6-8 weeks. Far short of the potential 16 week process to get to court and there are no guarantees it will be resolved on that occasion.
If it is Children Arrangements you want to resolve then again if you were to issue proceedings you will not have a hearing date for 2 months. Again this is due to the safe guarding report which needs to be undertaken in advance of any such hearing. Can you imagine having to wait this long to get to see your children.
In either case if your ex wont come to mediation then you may have no option but to pursue your issues through our courts who will conclude matters for you one way or another. However if they are prepared to come to mediation then statistically you are more likely to seek an outcome far more quickly and more tailored to your personal needs and if your issue is in relation to your children then an outcome far more successful and a longer term basis than any court imposed order.
If mediation doesn’t work for you then you will have still made some progress, if there has been financial disclosure this can be used throughout the court process and in addition to this you will have identified the issues which can be agreed and therefore focus on those which you cant agree, hopefully streamlining the work you need to do with your lawyers.
For more details about our service check out our youtube channel Family Mediation Solutions or email email@example.com or WhatsApp here.
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