Following the breakdown of a relationship or marriage there can be many areas of dispute, particularly relating to how they divide their finances.
Conventionally, each party engages a solicitor and negotiations take place, often taking many months. Some couples try mediation via a neutral third party, which also takes time, and has the significant drawback that legal advice is not available in the meetings.
If either option fails, then court proceedings are often issued, resulting in the whole process typically taking more than a year to conclude.
There is an alternative; represented mediation. This is similar to ‘normal’ mediation but, crucially, each party is represented by a solicitor or barrister, and a full day is available.
The intention is for the mediator, the parties and their legal advisors to reach an agreement by the end of the meeting. This type of mediation has been used successfully for many years in civil cases, but is only now being recognised as a useful option for resolving family disputes.
The role of the mediator, who will usually be a specially trained and accredited lawyer, is to facilitate an agreement between the parties. The parties exchange financial information and documentation, which the mediator reads prior to the mediation meeting.
He or she also considers the statements and arguments put forward by each side. The mediator will not give any opinion on the legal points raised, but will challenge the positions taken by each side.
This can be particularly useful if the legal representatives have put a ‘gloss’ on their client’s case or, worse still, have not advised their clients on the true merits of their position.
The meeting proceeds with the mediator enabling discussions and negotiations, helping the parties to reflect upon their priorities and the real strengths and weaknesses of their case.
The lawyers are there to guide their clients, advise on the law, and ensure their clients achieve a fair outcome. The mediator will facilitate respectful communication throughout, and enable each party to gain an insight into what is really important to the other party, and why.
If compromise is reached, the two lawyers can draft a formal agreement for the parties to sign.
The main advantages of represented mediation are:
- A meeting can usually be arranged within weeks, potentially saving a huge amount of time; a quick resolution allows the parties to move on with their lives and look to the future.
- Each party has their lawyer present for advice and guidance, rather than having to consult him or her afterwards, when some important issues may no longer be fresh in the memory, and the timetable can slip.
- The process will usually be significantly cheaper than attending court, and often cheaper than prolonged negotiations involving solicitors.
- It can preserve a cordial relationship between the parties, which is particularly important where there are children to be co-parented for years to come.
- An agreement avoids the damaging ‘winner and loser’ outcome of court proceedings.
- As the process is voluntary, it is more likely that the parties, who have invested their time and money into the day, will be keen to find a solution.
Represented mediation allows the parties to retain greater control and can provide separating couples with an empowering, swift and less expensive option to resolving some of the most difficult disputes they are ever likely to face.
Other forms of Alternative Dispute Resolution (ADR) may also prove an effective alternative, including Collaborative Law and Arbitration.
Goughs have represented their clients in some of the first family law cases in the south-west to be resolved using this innovative process, so can speak with first-hand knowledge of its benefits.