With Elmhirst Parker Solicitors, Barnsley
If you’re splitting up, separated or divorcing, it can be overwhelming to deal with the practical arrangements, particularly if you have children between you.
When tensions and emotions are high following a relationship breakdown, it isn’t always easy to be co-operative. But putting those feelings aside to co-parent together is always in the best interest of your children.
Family lawyers are there to guide you through the difficult process to reach an agreement on any disputes you and your ex-partner may have, such as finances or co-parenting agreements.
Contrary to popular belief, appointing a solicitor doesn’t automatically mean your case will go to the family courts. It is well-recognised that negotiated agreements between adults generally enhance long-term co-operation and are better for the child concerned. Therefore, separated parents and families are strongly encouraged to attempt to resolve their disputes concerning the child outside of the court system. This may also be quicker and cheaper.
Helen Palmer, family lawyer at Elmhirst Parker Solicitors says: “Court proceedings are highly stressful and time consuming for all, and any good solicitor aims to avoid court wherever possible. Mediation can be a very good way to help couples discuss and negotiate on all issues that may arise following a separation and hopefully reach an agreement without the need of going to court. But this isn’t always possible and ex-partners are advised to seek legal advice from a family lawyer to assist them in the mediation process and begin litigation if the need arises.”
Lord Chancellor, Dominic Raab is currently drawing up plans to penalise warring parents who he says are clogging up the courts with civil cases that could be otherwise settled through ADR such as mediation. His plans include making mediation the default process in family law disputes, as well as allowing the courts to impart substantial legal costs for parents deemed to be abusing the system.
What happens in mediation?
Under the Child Arrangements Programme, all family law cases must first have a Mediation Information and Assessment Meeting (MIAM) to establish whether mediation is a suitable option. Both parties are required to attend the MIAM. The CAP is designed to assist families to reach safe and child-focused agreements for their child, out of the court setting where possible. If both parties are unable to reach an agreement and a court application is made, the CAP encourages swift resolution of the dispute through the court.
A mediator is a neutral party who is there to help both parties agree a solution through amicable negotiations. They are impartial and cannot give legal advice, neither can they make a decision unlike a judge at court.
Because mediation is usually quicker than going through the court system, it is less stressful and a lot cheaper. Under the Ministry of Justice’s voucher scheme, you may be entitled to £500 towards to costs of mediation. Three quarters of family cases that were eligible for vouchers successfully resolved out of court.
There are, of course, some cases where mediation isn’t applicable, such as those involving safeguarding issues, domestic abuse, or urgent matters where the child may be at risk of being taken out of the country etc.
While there are many advantages to mediation, there are also some obstacles that parties must be aware of. The main disadvantage is that resolution is not guaranteed, and a case may still have to go to court. Mediation is also not compulsory and relies on co-operation, which can be used as a pawn by hostile parties.
What is the role of a solicitor during mediation?
It is usually a solicitor who will suggest mediation as a possible solution to your dispute. A family law solicitor can give you legal advice on the issues drawn up from mediation before you sign any agreements.
Once you reach a conclusion and have a ‘memorandum of understanding’, a solicitor can turn this into a consent order and have it approved by a judge. A consent order makes your agreement legally binding, whereby a party can be taken to court if they fail to stick to the agreement.
It is advised to seek legal advice for a consent order to ensure it is watertight and that all relevant aspects have been covered, such as a schedule of where the children will live, with whom they will have contact, and any conditions such as handover arrangements or travelling abroad.
*This is not legal advice; it is intended to provide information of general interest about current legal issues.