When a relationship is breaking down, experience shows that effective communication is one of the first things to go. This can lead to all sorts of unintended misunderstandings, which then inevitably impact upon trust. Once this happens it can make resolving a difficult situation even harder. If there are children involved, it is even more important to keep the lines of communication open, keep conflicts in proportion and consider making compromises with your partner.
Alongside solicitor led negotiation, mediation is one of the best options open to couples when their relationship has broken down. It can allow both parties to work together and reach decisions without using the court system. These decisions will often include the practicalities of separating, such as what to do about the division of any assets including the family home, income, capital and, where appropriate, arrangements for where any children will live and how time spent with them will be shared between their parents.
Mediation can be an effective way to avoid costly court proceedings, lessen the amount of time taken to resolve the disputes and reduce the stress of both parties. It entails talking to each other in the company of a self-regulating professional - a mediator - and attempts through discussion to resolve any disputes that may have occurred as a result of the break-down of a relationship. The mediator will seek to ensure that sessions are held in a calm and comfortable environment, so as to ensure, as far as possible, that you are able to talk freely to work through any difficulties surrounding the ending of the relationship. It is important in such a situation that neither party feels at a disadvantage, whether financially or emotionally, as that might impact upon their ability to discuss their position openly and therefore the outcome for themselves.
You will still need a solicitor before and during the mediation to explain your options. Your solicitor is there to help you know your rights and responsibilities, and to guide you through the process. Your solicitor will also help to draw up any agreement at the end of the mediation sessions to set out what you have both agreed and give effect to what you have agreed during the mediation sessions. If agreement is reached the mediator will prepare a document which sets out the terms of your discussions and the basis for your agreement. This is called the ‘Memorandum of Understanding’.
Despite the clear attractions of mediation, in reality it seems that the public are ‘voting with their feet’ when faced with the choice. Up until very recently, statistics compiled by the Ministry of Justice (MoJ) showed that the numbers of couples attending out-of-court sessions to resolve family disputes were in free-fall - perhaps caused by hesitance to meet the relatively small initial of consulting a solicitor ahead of mediation.
Instead, individuals are choosing to represent themselves in court as soon as a dispute emerges, putting extra strain on the courts which are forced to spend more time and effort dealing with parties that do not have the legal understanding needed to make their case properly. Choosing to ‘go-it-alone’, without specialist legal advice, is no easy task and this can mean a long, frustrating and costly divorce process for all parties.
In my experience, those who choose to pursue mediation, through their chosen solicitor, stand to save both time and money as opposed to taking a more confrontational route through the courts. Furthermore, mediation could create a more stable foundation for an amicable relationship with an ex-partner post-seperation, which will be particularly beneficial where children are involved.
By family and divorce solicitor, Mandy Rimmer
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