Did you attend Mediation during Family Mediation Week?
- AuthorLouise Rhys-Thomas
Mediation is one of the options available to separating couples for resolving issues following the breakdown of their relationship. It is a pre-requisite to attempt mediation before launching into litigation.
It allows parents, divorcing spouses, separating civil partners and former partners to work together with the assistance of an independent third person to reach a resolution about arrangements for the children or how to divide their assets, for example.
One of the benefits of mediation is that it allows parties to have control over the outcome, albeit with compromises being made, rather than this being put into the hands of someone else – usually a Judge – and one party being seen as the ‘winner’ and one party the ‘loser’.
Any agreement reached through mediation is usually written down and signed by both parties and the mediator in a document called a Memorandum of Understanding. However it is not a legally binding agreement as mediation is conducted on a ‘without prejudice’ basis and cannot be enforced in Court. The without prejudice document may be subject to amendment before an agreement is perfected.
Therefore, it is important that the agreement reached is drawn up into a formal document on an ‘open’ basis that the parties can sign and rely on in the future, should they need to.
In some circumstances, this will be essential. For divorcing couples, their financial agreement can be put into the form of a Consent Order which the Court can be asked to approve. The approved (or sealed) Consent Order will be legally binding, ensuring protection for the parties as the terms can be enforced by the Court if not complied with.
For cohabiting couples or spouses who are separated but not yet divorcing, it may be appropriate for their financial agreement to be recorded in a Separation Agreement or Deed. Such agreements are not yet held by the Court to be legally binding however, if prepared in accordance with legal principles and entered into freely and after full and frank disclosure are extremely persuasive and more likely to be upheld by a Court, should matters become disputed at a later date. The Court looks for evidence of the intentions of the parties at separation.
Where the arrangements for parties’ children have been agreed, this could take the form of a Parenting Plan setting out those arrangements but also agreed guidelines on how parents will communicate with each other and support the children with their co-parenting. In some cases, it may be appropriate for the Court to be asked to approve the agreement as an Order by consent. Mediation may be used to prepare a Parenting Agreement.
The experienced Family Team at Hughes Paddison regularly deal with advice during and following on from mediation, advising in respect of a Memorandum of Understanding and the drafting of documentation following mediation. Hughes Paddison can also advise on documentation prepared by the other person’s solicitors. Please feel free to contact a member of our Family Team on 01242 574244 and we will be happy to meet you and discuss your situation.