The actual process of separating and divorcing is relatively straightforward, and it is possible for a couple to complete the task themselves without professional help, for a small sum of money in court fees. However, VERY few couples manage to do this, because they are scared, they don’t understand the process or they don’t know what the Courts will require, and their relationship can be highly emotional, lacking in trust or a battleground.
To protect themselves, most couples turn to solicitors in the hope of getting as good a deal as they can. Solicitors are not allowed to act for both sides, as they are obliged to act in their clients’ best interests and there would be a conflict of interests. Therefore, the separating couple has to use two separate sets of lawyers, and the bills soon mount up. Most family solicitors are very good at what they do and work collaboratively – there are however some who think that going to court should really only be a last resort.
A major shake-up of the family court procedures in England and Wales comes into effect on 6 April 2011. All divorcing and separating couples will be referred to mediation to try and settle any disputes before being allowed to go to court.
The move towards mediation was given further impetus when, in 1999, Lord Woolf produced his important report called “Access to Justice”. It set out a number of shortcomings he found in the current legal system. Amongst other things, he found it to be:-
> Too expensive
> Too complicated
> Too adversarial
> Too slow
Lord Woolf suggested family mediation an appropriate cases as a way to overcome these shortcomings.
Family mediation is an alternative to lengthy and expensive court proceedings so if you must divorce, this is the smoothest way to go about it!
In a divorce or separation, an independent mediator will assist the parties to reach agreement about arrangements regarding children and money.
You should note though that mediation is not a forum to attempt reconciliation.
The United Kingdom government hopes that this plan will reduce the number of divorces which are dealt with by the courts.
Its assumption is that problems are often best resolved via discussion and agreement.
In addition to saving court time and expense, it will provide people with a quicker, cheaper and more harmonious way of dealing with disputes.
The rules make it obligatory to consider mediation by attending a Mediation Information and Assessment Meeting.
But they do not make it compulsory to actually commit to the process thereafter.
The new rules will not apply if there has been domestic violence within the last 12 months or if there are child protection issues.
A mediator is an independent and neutral facilitator, who is able to talk to both sides and who works for the benefit of the whole family. As there is just one mediator, he or she will have a clear idea of the feelings, wishes, hopes and fears of both parties.
Although both parties can choose to have their lawyers present, it’s not necessary. As the agreement can be reached amicably, there does not need to be two lawyers sending demanding letters to each other. The process is therefore quicker, less expensive and less aggressive. This last point is particularly important where children are involved, because the parents will have a continuing relationship for as long as they both are providing parental care.
The mediator will gather all the relevant financial information and, by using use his or her knowledge and negotiating skills, try to draw the two sides together into a sensible, fair and practical agreement that will be acceptable to both of them and to the Courts.
This may mean moving them from their entrenched positions (typically “She’s not getting her hands on my pension” and “If he thinks I’m going to move out of this house, he can think again”), to whatever solution is in the best interest of the family.
The mediation process is non-binding; neither party is required to accept the mediator’s proposed agreement.
The parties to a mediation may or may not have an attorney present; attorneys are advisors and not participants in the mediation process.
The family mediator then takes all the information and puts into a consent order or Separation Agreement, which clients are very strongly encouraged to take the deed to solicitors for an independent check that the document is correct – for the client’s protection, as well as mine.
I happen to be qualified as a Change Management Specialist, Business strategist and coach, and I know a mediator who was a psychologist and another who is an engineer. Another started as a solicitor, rose to be a family division judge, but is now a mediator. Others have had long business careers. Although I am qualified as a family mediator, I don’t practice as one. I focus on being an amazing Divorce Coach. HOWEVER I have contacts with some of the best family mediators and collaborative lawyers out there.
We don’t pretend to know everything and, if we have a problem and need legal advice, we are happy to turn to solicitors for clarification and guidance.
The prime requirement to be a mediator is an abundance of common sense. What we all are trying to achieve for our clients are sensible agreements, reflecting an understanding of the situation of the parties, combined with a knowledge of what the Courts will accept. I am pleased to say that mediators are successful in most of the cases that we take on.
It was Lord Woolf who said “Skilled mediators are now able to achieve results satisfactory to both parties in many cases which are quite beyond the powers of the lawyers and the courts to achieve”.
For further information on family mediation services, contact your local Citizens Advice Bureau, or look in your local phone book (often listed under ‘Counselling’). Change the way you manage the business-side of your divorce today. Find out more about mediation here
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