Steven Wade is a family law advisor (McKenzie Friend) with nearly 20 years of experience helping people represent themselves in court. Having been through the system personally and supported thousands of others since, he knows what it’s like to face the stress, confusion, and pressure of doing it alone. This blog shares practical insights that empower you to take control of your case — without the legal jargon or the hefty solicitor’s bill.
Is mediation legally binding?
Family Law Assistance
The only alternative to a solicitor.
Is mediation legally binding?
- Introduction
- What is mediation?
- Do I have to go to mediation?
- Does mediation work?
- Alternatives to mediation
- Is mediation expensive?
- Is mediation legally binding?
- Conclusion
Introduction
Making an application to court should always be the last resort.
If you end up in the family courts I won’t lie to you – it’s going to be a challenge. It can be:
- Expensive. At a recent family law conference the legal professionals there agreed that £53,000 in fees for a case wasn’t `disproportionate’.
- Time consuming. You will need to take time off for work to attend several hearings to deal with your case, meet court-appointed experts, attend court-ordered cases and spending time meeting with whoever is helping with your case and/or preparing for the legal side of things.
- Emotionally bruising. Your life is laid bare with hostile solicitors and barristers cross-examining you, experts interviewing you and reporting on your state of mind, assessing you, discussing your character faults and more.
- Stressful. Your life is put on hold with you being unable to make plans for the future until matters have been resolved – and you won’t know when that will be either. It will be hard to commit financially to things or to say if you’re available to do things either.
- Damage relationships. You will find relationships with friends and family members affected as they `weigh in’ on you or your ex partner’s side, dispensing unwanted advice and judging you for the situation.
The are hundreds of reasons to not go to court if it can be avoided
Fortunately, there is an alternative that can bypass all of this: Mediation.
What is mediation?
To quote the Citizens Advice Bureau, mediation is
Mediation is a way of sorting any differences between you and your ex-partner, with the help of a third person who won’t take sides.
The third person – the mediator – will help you explore possible solutions. They’ll listen to what you want and what your ex partner wants and see if a compromise can be reached that means that you can both live with an arrangement (even if you’re not necessarily `happy’ with it. Because of their background they’ll have seen large numbers of situations like yours and be able to come up with ideas that may not have occurred to you or your ex partner to make things as easy and fair as possible. To find a mediator check out `National Family Mediation‘ – they have branches around the country and probably have one in your localarea
Your initial session will be a MIAM (a Mediation Information Assessment Meeting).
Your ex partner won’t be at the MIAM (they’ll be invited to a separate one). It’s a chance to find out about the mediation process, how you see the situation and what you would like to happen.
After that? You’ll both be invited to mediation and they’ll try to help you find a solution. If you (or your ex) don’t want to see each other `shuttle’ mediation is possible – which is the same process, albeit with you sitting in separate rooms and the mediator moving back and forth between where you and your ex are.
All going well after the process and you agreeing a plan with your ex partner you will receive a `memorandum of understanding‘. This is a document that makes everything clear what you’ve agreed to mimimise the chance of future disagreement and enabling you to work together for your children, finances or whatever else you’ve attended mediation for. (It’s important to point out here that if you’re dealing with child matters you don’t need a court order).
In terms of child cases an order isn’t needed if agreement has been reached; the court prefers that parents work together to come to a solution and takes the view it is no one else’s business if mum and dad have come to a mutually agreeable solution in the best interests of the children. It’s the best of all outcomes where children see their parents cooperating like adults, seeing each other as allies in ensuring their children are raised in a loving environment even if their parents aren’t together and are devoting their time, money and other resources to working together rather than against each other.
This is the `holy grail’ of parental separation.
For finances, it’s a little more complicated. While there is no compulsion to get a finance order you will remain linked to your ex partner until you get a `clean break’ order or upon remarriage (whoever remarries can no longer claim on the other ex partner). So in financial cases a memorandum of understanding taken to court is a huge advantage. A court will look at this document, ask questions to ensure that everything is covered and the desired order is consistent with the Matrimonial Causes Act and then turn it into an order.
Simple, yes?
Do I have to go to mediation?
Yes. No. Sort of. No one is going to make you go to mediation.
If you want to make an application to the family court there is a legal requirement to attend a MIAM (see below) but not attend mediation. You don’t need to attempt a MIAM if your safety is risked or if the other party is going to do something to frustrate the application you may have to make (when they do something like sell the house or move to Australia with the kids when you organise mediation).
Attending a MIAM is a legal requirement – attending mediation isn’t.
Paradoxically the number of people attending mediation has fallen since it become compulsory. In reality, the most likely outcome of refusing to attend mediation is a mild telling off by a judge (or being told in court you need to go before anything else happens) but apart from that?
Nothing.
Does mediation work?
It’s hard to say. By the time people come to us it’s failed. Statistics are hard to come by. In our experience mediation rarely gets past the MIAM phase (if it happens at all).
Critics of the family law system will say it pitches people against each other in a `winner takes all’ scenario that discourages people from agreeing on anything. They’ll say that typically one parent (usually the primary carer) is able to effectively dictate contact between their ex partner and the children and has nothing to gain from attending as they are already happy with the situation.
We could be wrong however – because the people who have worked things out successfully without our help never contact to us in the first place.
Alternatives to mediation
You don’t need to go to mediation at all if you can work something out with your ex partner! There is nothing to stop you sitting down with your ex in a coffee shop to hammer out an agreement. You can work things out yourself about the children or the finances with no help at all.
I’ll caveat it by saying however that if you want the financial side of things to be legally binding you are going to need a court order. It needs to be something that is consistent with the law as well as covering just about everything so you don’t end up arguing over debts, bank accounts or anything else down the line – something that sets the stall out and gives you both the security you need to move forward with your life.
Is mediation expensive?
Compared to the costs of court case it’s far less expensive. The cost of a court case is typically around £15,000-£20,000 (although we’ve seen far more expensive ones). Mediation will likely cost you around £600-£800.
So mediation is a `no brainer’ if it works – particularly when you factor in all the other things a court case entails in terms of time, money and heartache.
On top of this – if you’re eligible for legal aid mediation can cover mediation costs too.
Is mediation legally binding?
The simple answer is no.
The only thing that is legally binding is a court order – nothing else. It’s as simple as that.
If one party changes their mind about any agreement, anything in the memorandum of understanding there is no recourse other than making an application to the court. If that happens? Well – take a look at the introduction above.
So it is entirely possible for one (or both) parties to decide they no longer agree with what is in it and refuse to abide with it.
And if the other party does make an application to the court to seek a resolution and produces the memorandum of understanding to demonstrate that their ex agreed to something and then changed their mind the court will take a look at it. But it will not automatically `rubber stamp’ it, telling the now unhappy party they have to abide by it.
The court will possibly see it as the dissenting party as acting in bad faith – i.e. agreeing to something and then changing their mind. In terms of children it could be argued they agreed something they clearly thought was in their best interests and now don’t demonstrates they weren’t serious about the agreement or else don’t know what is in the best interests of the children. They are possibly going to argue the situation has changed, they felt pressured into agreeing or they spoke to someone who told them they shouldn’t have agreed to it in the first place.
But it won’t be rubber stamped and turned into a court order.
Conclusion.
Mediation should be the norm and it should be the best way of moving forward.
But in most cases (in our experience) it simply doesn’t work. I’ve spoken to mediators over the years who will – obviously – say this isn’t the case. Mediation works when both parties want it to work.
It only takes one party to attempt to `game’ the process to their advantage and the process fails. People can pay lip service to it. They can use it as a delaying tactic, to attend to `box tick’ the fact they are being amicable or to fish for the other party’s views to seek advantage while not being serious about engaging to find a solution.
If you feel you may need to make an application organise mediation now by finding a mediator, calling them and organising a MIAM ASAP. Don’t ask your partner if they will attend. Take control and book that meeting. Engage fully but be aware that a hostile ex partner is unlikely to engage in good faith. Even if you think it is pointless it is a legal requirement before you put an application.
So organise it, go with an open mind but be aware it may be the first step to ending up in court. Good luck!
This post is for informational purposes only and does not constitute legal advice.
Still need some help? Here’s what to do next…
About the author…
[trustindex no-registration=google]