At the end of the mediation process, your mediator will explain to you how to obtain legal advice about any proposals the two of you have produced together and how you may convert them into a legally binding agreement and/or a court order. Proposals relating to children often do not need to be turned into a court order, but proposals relating to finances almost always should be. If you have not been able to find any mutually acceptable proposals, your mediator will explain to you what your options are at this stage, including negotiation through other means, arbitration and court proceedings. Although the mediator will never instruct you to do something, they may suggest that you take further advice, for example, and that you consult with a tax or pensions specialist, or with a family lawyer, before making any decisions.
Even where mediation does not succeed, it may be able to help by giving you a better idea of what your family’s real issues and options are, and by giving each of you an opportunity to hear directly from the other person involved.
Nothing agreed in mediation is in itself legally binding, or even something that can be discussed in any future legal proceedings. 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 both, after taking advice, enter into a legally binding agreement based upon the proposals arrived at within the mediation process. Usually, the outcome of mediation is put into a legally binding format through solicitors.
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 and/or a court order, which normally includes getting legal advice.
Some people find it helpful to have legal advice during mediation.
For example, 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. 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.
A family solicitor instructed by you will act for you and you alone but will also help you think about how decisions could affect other family members, especially any children involved.
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.
You can take your case to court yourself instead of using a lawyer (solicitor or barrister). For most people, the court and the way it works is unfamiliar. So make sure you are clear about the steps you need to take, including what the court will need to have before any hearing.
Court staff can’t give you advice but there are other ways to find out what you need to do. You could contact
- a law centre;
- an advice organisation such as AdviceNow or Citizens Advice; or
- the Royal Courts of Justice advice pages.
Or you could have a short session with a family lawyer or look at helpful information from organisations such as the Bar Council. Find out what help is available for you, including emotional support if you need it.
When looking for advice and guidance, remember:
- Get advice early if there are any concerns about 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 and court staff to help you. So make sure you get an understanding of how the court works.
- If your ex 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.
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.
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.
Unlike going to court or arbitration, family mediation recognises that you are the experts about your own family and leaves the decision-making to you.
Unlike negotiating through your lawyers, family 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.
You will still require legal advice but on the basis that you’ve already agreed how you’d like to proceed.
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 family mediators might be qualified lawyers but in the mediation room that is not their job. Legal advisers 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, setting out the general legal principles that apply to the issues you have raised, but will not tell you what they think will happen if your case goes to court. Family mediators do not concentrate entirely on the 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. Your mediator will suggest that you each take independent legal advice before you make a final decision because it is important that you understand all the options open to you before choosing one.
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