Support with mediation
Once you have decided to separate, a mediator can help you work through all of the consequences of the relationship breakdown. The mediator can give information on issues about children, money and property. The mediator will provide a constructive platform for you and your partner to talk things through. A mediator cannot, however, give legal advice. This is why it’s important that people going through mediation also each use a lawyer to seek advice and assistance on the discussions taking place and to make sure that agreements reached are fair and appropriate.
Agreements reached at mediation are usually set out in a ‘memorandum of understanding’ but remain confidential and cannot be referred to in future court proceedings. Financial agreements are usually drafted by lawyers after the mediation process has ended to secure the terms in a binding court order.
The lawyers that you and your former partner choose must both be collaboratively trained for this process. A participation agreement is signed at the outset by both lawyers and parties, which commits them to resolving all issues away from the court arena. Solicitor correspondence is kept to a minimum because all issues are openly discussed at ‘four-way meetings’ using agendas fixed by you, and the process is very client led. Unlike mediation, you will have support and legal advice along the way so you can enter into negotiations with confidence.
It is a relatively new process.
Financial agreements reached in collaboration are then submitted as a paper exercise by the lawyers to court for a consent order to be made. You will not need to attend court or see a judge at any stage if you chose this process.
Even if you are not collaborating or mediating, this does not mean to say that you need to take your case to court. We can correspond on your behalf with your former partner or his/her solicitor in arms-length negotiations. We can also arrange for round-table meetings to take place in the office to discuss all issues with a view to reaching resolution. Whilst a round-table meeting is more positional than a collaborative four-way, it is important that both parties feel they are being listened to in a respectful way and we will help keep the discussions focused on the issues and as constructive as possible.
If agreement is reached by solicitor negotiations, the terms can be made legal and binding by a court in a consent order submitted to court as a paper exercise. It should not be necessary for you to go to court or meet a judge if you choose this method of dispute resolution.
Sometimes, an application to court is inevitable. This may be due to an emergency situation to protect property and other assets from being disposed of, or where a party needs immediate spousal support to make ends meet and the other party refuses to assist voluntarily. There will also be some cases where agreement cannot be reached and negotiations break down. Alternatively, you may not trust your former spouse to provide open and honest information about his or her finances or it may be that your former partner is seeking an unrealistic outcome and is stubbornly refusing to budge from his or her position.
See our page on financial remedies which sets out the process for this type of litigation. Most cases are concluded within 6 months of a court application being filed. Emergency remedies are of course dealt with much sooner.
Judges have wide discretion in how they apply the law and there are usually a range of reasonable possible settlements which make the outcome of litigation impossible to predict with any certainty. The downside of litigation is that it is usually more expensive and takes longer to complete than other dispute resolution methods and the final order may not be to either party’s liking. Settling out of court enables a couple to retain control over their decisions, even if they have to make certain compromises.
Costs orders are rarely made in family litigation cases. The general rule is that you each pay your own legal fees. The exception to this is where costs sanctions are imposed, for example, because a party fails to comply with a court order or does not give open, honest and frank disclosure of their financial circumstances.
If it transpires that your former spouse has misled the court as to their financial position, then any order made can be set aside to facilitate a fairer outcome. Costs sanctions will almost certainly follow in these circumstances against the offending party.