Is mediation legally binding?
Nothing agreed in mediation is in itself legally binding, or even something that can be discussed in any future legal proceedings – it’s ‘without prejudice’ or off the record. This means that you can discuss all the options freely without worrying that you are going to commit yourself to something that you later realise will not suit you. However, you can, after taking advice, enter into a legally binding agreement based upon the proposals arrived at within the mediation process. Often, the outcome of mediation is put into a legally binding format through the court called a ‘Consent Order’ or something that you have both consented to and are now asking the court to approve.
Can I change my mind after mediation?
Nothing you do or say during a mediation will create a legally binding agreement. At the end of the mediation process, your mediator will explain to you how to turn your ideas into a legally binding agreement consent order, which normally includes getting legal advice.
Should I get legal advice?
Legal advice may be helpful for:
- Advising on any legal matter connected with your mediation discussions
- Advising on the proposal reached through mediation
- Turning the written agreement into a legally binding document, such as a consent order
- Supporting you in preparing divorce papers for the court, if necessary
You can get legal advice from a solicitor and you can arrange this at any point in the process. It’s important to make sure that the solicitor you choose specialises in ‘family law’. However, if you’re talking about your issues and working to reach agreement through mediation, there is much less need for a solicitor’s time. This means that legal fees can be kept as low as possible.
Can I represent myself in court?
You can take your case to court yourself instead of using a solicitor or barrister. For many people, the court and the way it works is very odd. Make sure you are clear about the steps you need to take, including what the court will need to have before any hearing. Also, note that court staff can’t give you advice.
When looking for advice and guidance, remember:
- Get advice early if there are any concerns about the safety of any party involved in the case.
- Make sure you understand what the process of going through court might cost you.
- The court will expect forms or other court documents to be properly prepared and you’ll want to make sure you have a good case.
- Courts are very busy places and there can be limited time to deal with things. The more prepared you are, the easier it will be for the judge or magistrates to help you. Try and get an understanding of how the court works.
If your former partner is using a solicitor, then that solicitor may also contact you. In many cases, this is a helpful part of the process and may help to clarify or even resolve some of the issues before the court hearing. However, solicitors are bound by strict rules about client confidentiality so may not be able to provide all the information you ask for. They also have to check with their client as to whether, if, and how they should respond to any communication from you.
Do I have to go to court?
There are a number of ways of dealing with family matters without having to make an application to the court. A divorce or dissolution of a civil partnership can only be granted by a court but this can be done without actually going to a hearing at court. For many people, sorting out arrangements for children and agreeing how to split property and finances can be done without involving a court at all. If you can’t work things out between yourselves or have a family dispute, you will be expected to try to sort it out using mediation before going to court.
Can mediation work against me in court?
The information clients share with the mediator is kept confidential, with some very limited exceptions (similar to the exceptions that apply to therapists, lawyers and counsellors). Proposals put forward during mediation cannot be referred to in court proceedings. If you try to mediate but it doesn’t work, the court will never be told why the mediation wasn’t successful.
Why shouldn’t I just go to a solicitor?
Unlike going to court, mediation recognises that you are the experts about your own family and leaves the decision-making to you. Negotiating with your lawyers is costly when you’re paying for their time to send emails, letters or filing forms with the court. In addition to that, you’ll normally pay for them to respond to your former partners’ calls, emails or letters too. Finally, you may need to pay for a solicitor or barrister to represent you in court for 2-3 days or more. This, added to the adversarial nature of the process which can add to the frustration and acrimony, generally makes the legal approach less rewarding.
Alternatively, mediation allows you to speak directly to each other so that you can both explain what you are feeling and what is most important to you. It also lets you focus on the things that really matter to you as a family with a view to making things better rather than arguing in court. Finally, mediation can be far cheaper than courts when all you’re paying for is the meetings you have.
Can mediators replace solicitors in divorces?
Our mediators are able to provide you with a great deal of legal information but they cannot ‘advise’ either of you about your particular legal situation. Some of our mediators might also be qualified lawyers but in the mediation room that is not their job. Lawyers are required to have individual clients and are very clearly on the side of their client, whereas mediators are required to provide impartial and balanced help to both of you.
Our mediators usually spend some time explaining the legal context and setting out the legal principles that apply to the issues you have raised. Mediators will not tell you what they think will happen if your case goes to court, but generally speaking, lawyers also struggle to give you any firm idea about how a judge or solicitor will decide. Mediators do not concentrate on legal solutions to problems but instead explore what might work for everyone in the family and focus on the things that matter most to you.
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