When a relationship ends and there are children or finances to sort out, most separating couples face the same underlying question: can we reach an agreement ourselves, with some help, or do we need a judge to decide for us? In England and Wales, there are various ways parties can reach an agreement, two of which are family mediation and court proceedings. They differ sharply on cost, speed and the kind of outcome they produce. Understanding those differences early can save a great deal of money, time and stress.
Two very different routes
Family mediation is a voluntary, confidential process. An independent, accredited mediator helps you and your ex-partner work through the issues and reach your own agreement about children, property or money. The mediator does not take sides and does not impose a decision; their job is to help you find solutions that work for both of you.
Court proceedings work the other way around. You make an application to the Court and after financial disclosure and various hearing stages, at a final hearing a judge weighs up the evidence, and imposes a decision that is legally binding on both of you. The outcome is taken out of your hands.
Before you can apply to court for most child or financial orders, you usually have to attend a Mediation Information and Assessment Meeting, known as a MIAM.
It is worth clearing up a common misconception here. Mediation itself is not compulsory. What is required, in most cases, is that you attend the MIAM, a short meeting where a trained mediator explains how mediation and other non-court options work and assesses whether they are suitable for your situation. You then decide whether to go ahead. There are also exemptions from the MIAM requirement, including where there has been domestic abuse, where the matter is genuinely urgent.
The costs of issuing and dealing with an application to Court can be considerably higher than the costs incurred in agreeing matters voluntarily or through Mediation.
Speed
Court tends to be slower, and not only because of the issues in dispute. Cases compete for limited hearing dates, and backlogs are a long-standing problem.
Mediation can be quicker. Because you are not waiting for the court to list your case, a series of sessions can often be arranged and completed within a matter of weeks or a few months. The pace does, of course, depend on both people being willing to engage.
Control and outcomes
The difference in outcomes is more than just who decides. In mediation, you and your ex-partner shape the result yourselves. One point that is often misunderstood is that a mediated agreement is not automatically legally binding. To make a financial agreement enforceable, you would normally turn it into a consent order and ask the court to approve it.
A court order, by contrast, is binding and enforceable from the moment it is made. The trade-off is that the process is adversarial and the decision is no longer yours to make.
When court is the right route
Mediation may not suit everyone. Where there has been domestic abuse, where a child may be at risk, where the matter is urgent, or where one person simply will not engage or cannot be trusted to be open about their finances, court may be the appropriate or only sensible route.
Where to go from here
The right route depends on your particular circumstances: what is in dispute, how well you and your ex-partner can still communicate, and whether there are any safety concerns.
If you are weighing up the two, speak to Katherine Tippetts, who can talk through which route fits your situation and help with the next step, whether that involves making a referral to a Mediator or preparing a court application or indeed discussing other options including negotiation between solicitors to try and resolve issues.