Should I Try Mediation Instead of Fighting My Divorce in Court?

By on May 16, 2016

This is a common question asked these days, mainly because since April 2011 it has been compulsory for most divorcing couples (exemptions for those involving domestic violence in the past 12 months) to be referred for mediation but it is not compulsory to commit to an ongoing program.

Should I try Mediation instead of Divorce

In 2013 there were 114,720 divorces in England and Wales and whilst the general trend of divorce has been a downward one (in 2003 there were 153,065) the costs associated with using the divorce court system is massive £7000 estimated average, compared to an average figure of £535 for mediation. With the government continuing cuts to the justice system, legal aid and court closures, there is a huge impetus for mediation to work for as many people as possible.

How Does Mediation Work?

Upon instructing a solicitor or filing for divorce with the court, you will be advised to have an initial assessment with a local mediation practice. The process will involve:

  • An initial assessment to highlight contentious areas that need dealing with, typically children and finances.
  • This is then followed by a number of 90-minute sessions every couple of weeks. There is no limit to the number of sessions, as long as progress is being made, but 4 or 5 would be typical.
  • A memorandum of understanding is then drawn up between the parties, which can be used as a basis for a consent order in your divorce proceedings.

Should I Try Mediation?

In most situations the answer probably is yes. You may not like your spouse anymore and the thought of spending time with them is the last thing you need, but if you are arguing about your separation, that is exactly what will happen in the court, so you might as well try the cheaper, less adversarial alternative first. Remember, you can end the process at any time.

Advantages and Disadvantages of Mediation

  1. Costs: The cost of using mediation (£535), will usually be cheaper than arguing your case in court (£7000), but that is only the case if mediation works, if it doesn’t you will probably end up paying both sets of costs. In addition, depending on the strength of your argument and the reluctance/acceptance of your spouse, you could be awarded costs as part of the divorce but be aware, your spouse could just as easily be awarded costs against you.
  2. Timescales:  Unfortunately, courts dates can run for many months into the future, whilst mediation can be arranged easily and could theoretically be concluded within a few sessions. The average divorce in court takes 435 days, compared to 110 days with mediation.
  3. Flexibility: Mediation is flexible with appointments being arranged locally and at a time/date that suits both parties.
  4. Control: The judges ruling is final but with mediation your agreement is needed in order for any agreement to be enforceable.
  5. Fight your own corner: One of the keys to mediation is to remove friction by getting the two parties face to face for discussion. The flip side to this is, if you have been in a controlling and manipulative relationship, you could be coerced into agreeing to something that, if your solicitor were present, would not be agreed to.
  6. If you are not happy, you can always go to court: For some the threat of court is like the sword of Damocles hanging over their heads but if negotiations are not going your way, you can always go back to.
  7. Confidentiality and Without Prejudice: The mediation process is completely confidential, just as though you went to court. Unlike a court, mediation is without prejudice. You can say what you like and it will have no bearing on the agreement being reached (probably not the best negotiation tactic though) even if the matter ends up going to court.
  8. Its just elongating the process. Nobody knows your marriage like you (and probably your spouse) and so you are probably best placed to decide if mediation is right for you. If you know deep down it probably won’t work, it probably won’t, so it may save you time and money by going straight to court.

Would You Like to Know More About Mediation?

If you’d like to know more about the mediation process, then please do not hesitate to contact our family law solicitors. Our team of family law experts are here to offer you impartial advice, and assist you in ensuring that your divorce or separation concludes in an outcome that benefits all parties involved.  Contact Carter Law today to book a consultation.