A financial agreement reached in mediation is not in itself legally binding. However, the family mediator will draw up the agreement in a formal document known as a Memorandum of Understanding which can then be sent to each parties’ family lawyer so that the lawyers can sort out the process of making the agreement legally binding. The mediator can only do this if both parties consent to the Memorandum being sent out to the Solicitors as the agreement is strictly confidential.
This process does not double up on costs because the couple have usually saved money by sharing the cost of the mediator to reach their agreement. The alternative is to pay the separate hourly rates of two family lawyers to conduct arms length negotiations on behalf of their respective clients. However, couples do need to find the method that works best for them.
Mediation can be very cost effective for couples who wish to commit to finding their own solutions through direct talk rather than an exchange of legal correspondence.
If an agreement is reached in family mediation regarding arrangements for the children, it may not be necessary or appropriate for the agreement to become legally binding as an order of the court. Much will depend upon whether proceedings have already been issued at the court to resolve issues to do with the children.
Mediation can take place before or during the court process. The great thing about mediation is that it is completely flexible.
Increasingly, the government are encouraging couples to consider mediation as a positive alternative to litigation. This is particularly so where the dispute is about children. It is far better for children if their parents can come to an agreement about how they should be cared for rather than a Judge or Magistrates. Children can be affected badly by any acrimony between their parents. There can be no doubt that court proceedings are likely to escalate feelings of anger and resentment between the parents which in itself can rebound on the children. This may not be what parents mean to do, but it is all too common. Research has proven that where successful mediation has taken place, the negative impact of separation and divorce can be lessened for the children as well as their parents.
The Government have recently introduced a protocol which requires parties who wish to litigate to attend an introductory meeting about mediation with a qualified mediator, such as Family mediation Miams, to see if their problems can be resolved through mediation rather than court proceedings. These are called Mediation Information and Assessment Meetings or MIAMS. Court proceedings should always be the last resort for family disputes as they are expensive and emotionally draining. The new protocol makes it clear that the Government expect parties to properly consider the alternatives to litigation before taking the step of issuing proceedings. This approach will be backed up by the family courts who will expect to see evidence at a first hearing that parties have attended a MIAMS and at least considered whether mediation was suitable for them before resorting to litigation.
Even if mediation is not suitable for couples at the outset and court proceedings are issued, this does not stop parties later deciding to try mediation once proceedings are underway. If the mediation is successful and an agreement is reached, the parents can then request that the court make an order based on the agreement reached at mediation. Whether the court agree to do so will depend upon the court’s view about what is in the best interests of the children. However, if the agreement is sensible and meets the welfare needs of the children, the court will often grant the order requested. A court may even adjourn proceedings to allow the couple to mediate to resolve their differences. This may be something that the Court orders of its own volition or it may be as a result of the parents or their Solicitors requesting it.
