It is widely recognised that an amicable divorce process which allows the parties to come to an agreement outside of the court system is better for all involved. It is usually more cost effective and quicker and generally stops issues from escalating. No fault divorce will become possible from 6th April 2022 and this is expected to help make the whole process less confrontational since it removes the need to blame one party for the breakdown of the marriage. However, even before this happens, since April 2014, divorcing couple have needed to attend mediation before they can start court proceedings. The only exception in cases of domestic violence or abuse.
From 2011, an application to court to commence court proceedings required confirmation that the couple had considered mediation for any matters involving finances or children. However, this seemed to be widely ignored and so the necessity for a separating couple to attend a Mediation Information and Assessment Meeting (MIAM) before they are allowed to take their case to court became a legal requirement in April 2014. This requires the parties to attend a private mediation session to discuss their case and whether mediation is suitable. The only requirement is the attendance at this session, as opposed to the necessity to first undertake mediation. It is therefore argued that those wishing to circumvent mediation will continue to do so, since either party can simply state that they do not feel mediation will be appropriate.
Mediation or other forms of alternative dispute resolution allow a separating couple to try and resolve contentious issues in a manner that is more amicable and allows greater collaboration between the parties. There are various benefits for all concerned:
Using mediation rather than the courts is going to be a quicker process since the parties do not need to wait for a court hearing. Since it is less confrontational, it is more likely that the parties will reach an agreement more quickly. This all results in keeping costs down since the more time a case takes, the more expensive it will be. Resolving issues via mediation is therefore beneficial to both parties in the long run.
Children will often find the separation of their parents a very traumatic experience. If their parents are finding the process confrontational and difficult, the children are often impacted. By using mediation to resolve areas of conflict can ensure a better process for both the divorcing parents as well as the affected children and will ensure that their interests are kept at the forefront of the decision making process.
Using mediation rather than the courts allows the parties to remain in control and determine what is best for them in relation to the division of finances and matters relating to children. If the matter is dealt with by the courts, then they lose this level of control. Mediation makes the process less stressful and also helps the parties reach an agreement they are both happy with to allow them to move on with their separate lives.
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