Is mediation a ‘hoop to jump through’ before you can issue court proceedings?

The Ministry of Justice recently published a summary on people’s attitudes towards various forms of alternative dispute resolution, including mediation.

While it is mandatory to consider mediation before issuing court proceedings in the family court, the survey showed that some dismissed mediation in family cases as “an attempt to put relationships back together” or “a token step along the inevitable road to court.”

Whilst mediation is not suitable or appropriate in all situations, at Thomas Mansfield Solicitors we have always advocated mediation where possible. For many people it can be an extremely cost-effective and less acrimonious process than the alternative court route. It can also be hugely effective in reaching an agreement that all parties have contributed towards, and are happy with, especially when people use a good mediator.

The disadvantage of issuing court proceedings is well documented. Once the matter is in the hands of the court the parties can feel less empowered than if they are the main driver in the process, such as in mediation. Added to which, court proceedings are costly, time consuming and inconvenient. In financial matters, there are at least three court hearings, and it can take up to a year before parties have a final hearing in court. The court will set the timetable for what must happen and when, but there is a backlog of court work, and the family court is under huge pressure and experiencing big delays.

Contrast this with mediation, in which the parties book the joint mediation sessions for dates that suit all parties, agree the specific issues in dispute and focus their discussions on those issues. This means that time and cost is not wasted discussing agreed issues. The parties are on an equal footing because the mediator is jointly instructed and independent. The mediator is not on “one person’s side” as is the case when you have a lawyer representing you in court proceedings. Usually couples share their costs equally so there is just one professional to pay for, not two or more.

Choosing a mediator

When considering mediation, you should choose a mediator carefully. It is advisable to choose someone who is dual qualified as a family law solicitor as well as a mediator because whilst they cannot give tailored legal advice to individuals in the mediation process, they hold a working knowledge and understanding of how the process works, the legal principles involved and how to progress and settle the matter in a way that the law would expect.

Individual parties can of course, and are encouraged to, obtain tailored legal advice from their solicitor in between mediation sessions to ensure mediation negotiations run smoothly and both parties know the sort of outcome they should hope to achieve.

Our mediators are highly experienced family law solicitors that practice both as solicitors and mediators on a daily basis. If you are interested in trying mediation, please do not hesitate to contact our family law team on 020 3811 2894 or email Susi Gillespie.