Mediation flexible way to deal with separation
Following the Government's announcement that divorcing couples will have to undergo a compulsory mediation assessment before going to court, Terry Bastyan, partner and head of family mediation explains what the impending changes could mean for local families.
Couples will now be strongly encouraged to consider the benefits of mediation to resolve disputes before resorting to the courts in a shake-up of the family law system.Justice Minister Jonathan Djanogly said mediation was "a quicker, cheaper and more amicable alternative, particularly where children are concerned".
Mediation is an entirely different process than dealing with relationship breakdown through the courts. It is a very flexible tool that can be used as a stand alone, in conjunction with advice from solicitors, or even as part of court proceedings where some issues are dealt with through mediation and others decided by the court.
In recent years judges have realised the benefits of mediation and there has been a trend to encourage couples who have issued court proceedings to consider mediation. This has now been taken up by the Ministry of Justice which, with the Family Mediation Council, has established a pre-action protocol. This code of practice requires anyone who is intending to issue an application to the court in family proceedings (with some exceptions – mainly in cases of urgency or where there has been domestic abuse) to attend a mediation information and assessment meeting with a family mediator before doing so, to consider whether or not the dispute is appropriate for mediation.
Mediation can help couples (married or not and including civil partnerships) to talk about and resolve issues connected with separation or divorce including arrangements for children, financial support (including the family home, maintenance, pensions and other assets).
It is a very flexible tool as couples can undertake mediation over any period of time they want, can include almost any subjects, and it help puts couples back in control of decisions relating to their future.
The family team will offer both practical and legal advice – the aim being to encourage a conciliatory and constructive approach to problems to help the parties resolve issues without the stress, delay and expense of court proceedings. The average cost of mediation can often be much less than half of the equivalent cost of going to court.
More than 70 per cent of people that have approached our family mediation team about the mediation service have taken it up, with very high success rates in terms of positive outcomes.
Mediation offers separating or divorcing couples a very flexible tool as the process can be undertaken over any period of time, can include almost any subject – and it ultimately puts couples back in control of important decisions, rather than leaving it up to the courts.
Family mediation is a process in which an impartial mediator helps a couple who may be divorcing or separating to discuss issues that have arisen, especially those relating to their children, finances and property.
Most sessions take around an hour and a half and most mediators offer a free initial assessment to make sure that mediation is suitable. On average, a further two or three meetings are needed to establish issues and explore the possible options with a view to making decisions that both parties find acceptable.
If proposals are accepted by both, the mediator will prepare a Memorandum of Understanding. This is then presented to both parties' nominated Solicitors and the details can be set out in a legally binding document or court order. Mediation is not counselling or therapy, although the mediator can refer a couple to these services if they both agree that it will help.
It is also important to stress that no legal or other type of advice is given during the mediation process – mediators will always recommend clients to refer legal matters to nominated legal representatives or seek other help, for example from a financial adviser or pensions expert.
I have always regarded mediation as being complementary to the services which solicitors offer to clients in family cases and see no reason why the introduction of the new protocol should change this.
For more information please contact Terry Bastyan on 01392 424242
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Terry BastyanPartnerExeterThis e-mail address is being protected from spambots. You need JavaScript enabled to view it
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