As the government announced last month its decision to postpone plans to make mediation compulsory for separating parents in England and Wales, we discuss all things divorce proceedings | mediation vs litigation.

What is mediation? 

Mediation is a process in which a trained professional assists you and your spouse in settling a variety of topics. The mediator’s purpose is to remain unbiased while facilitating each spouse in reaching a mutual agreement. This may involve discussions on topics such as financial settlements and parental agreements. 

Is mediation right for me and my divorce?

Sometimes life can take an unexpected turn and divorce may become inevitable. However, discord and personal distress don’t have to be integral to the divorce process. If you and your spouse can maintain reasonableness and open communication with each other, mediation may be the best path for your divorce. 

• Willingness to Communicate: A readiness for mediation is indicated by a willingness to engage in open and constructive communication with the other party to discuss various aspects of the divorce.
• Flexibility and Open-Mindedness: Individuals ready for mediation are open to considering different perspectives and are flexible in finding compromises. They understand that the process involves give-and-take.
• Desire for Amicable Resolution: A person prepared for mediation prioritizes an amicable resolution over a contentious legal battle. They acknowledge the benefits of reaching mutual agreements rather than relying on court decisions.
• Preparedness to Disclose Information: Mediation requires both parties to be transparent about their financial situation and other relevant information. A person ready for mediation is willing to disclose necessary details to facilitate fair negotiations.
• Focus on Long-Term Solutions: Individuals who are ready for mediation are forward-thinking and focused on creating long-term solutions. They understand that the mediation process aims to establish agreements that are beneficial for both parties in the future.

It’s important to note that the willingness of both parties to participate in the mediation process is crucial for its success. If one party is uncooperative or resistant, the effectiveness of mediation may be compromised.

What topics can a mediator help you with?

• Custody: Mediators can assist in discussions about child custody arrangements. This involves determining where the children will live, which parent will have legal decision-making authority and the creation of a parenting plan that serves the best interests of the children.
• Access: Mediators can help define the terms of access, specifying when and how the non-custodial parent will spend time with the children. This includes details such as weekdays, weekends, holidays, and school breaks.
• Visitation & Holiday Schedules: Mediators facilitate discussions on visitation schedules, establishing a framework for when each parent will have the children. This may also include planning for extended vacations or special occasions, ensuring both parents have fair and agreed-upon access.
• Parenting Communication: Effective co-parenting relies on clear and open communication. Mediators can help parents establish guidelines for communication, such as methods of contact, frequency of updates, and protocols for discussing important matters related to the children.
• Child Support: Mediators play a crucial role in determining child support arrangements. They assist in calculating the appropriate amount of financial support one parent should provide to the other for the well-being of the children. This includes considering factors such as income, expenses, and the children’s needs.

In addition to these topics, a mediator can address other issues that may arise during the divorce process, fostering a collaborative environment for negotiation. This might include discussions about the division of marital assets, spousal support (alimony), and any other concerns unique to the couple’s situation. The goal of mediation is to help couples reach mutually agreeable solutions and avoid the adversarial nature of traditional litigation.

When is Litigation the best choice for my divorce?

While mediation may appear to be an optimal method for resolving divorce issues, it may not be suitable in certain situations. In cases where emotions are exceptionally intense or the other party is unwilling to cooperate and reach compromises on challenging issues, pursuing litigation may become the only viable option.

• Lack of Communication or Trust: When communication has broken down irreparably or when there is a significant lack of trust between spouses, it may indicate readiness for a litigated divorce. In such cases, individuals may feel that legal intervention is necessary to protect their interests.
• Desire for Legal Advocacy: Some individuals may prefer to have legal representation to advocate for their rights and interests in court. They may believe that litigation is the best way to ensure their voice is heard and their rights are protected, especially if they feel unable to negotiate effectively with the other party.
• Complex Financial or Custody Issues: When the divorce involves complex financial matters, such as high-value assets, business ownership, or intricate investment portfolios, or if there are contentious custody issues, individuals may feel that litigation is necessary to resolve these matters effectively.
• Inability to Reach Agreement Through Mediation: If attempts at mediation have been unsuccessful due to irreconcilable differences or an inability to reach agreements on key issues, individuals may see litigation as the next step to resolve their divorce.
• Emotional or Psychological Barriers: In some cases, emotional or psychological barriers may make mediation difficult or impractical. If one or both parties are emotionally unable to engage in constructive dialogue or compromise, litigation may be perceived as the only viable option to move forward with the divorce process.

When is Litigation the Only Choice?

If your relationship involves a history of substance abuse or domestic violence, divorce mediation may not be a viable option. For instance, if you have experienced domestic abuse during the marriage, your former spouse may likely continue to exert control even during mediation, potentially using intimidation tactics to pressure you into accepting an unfair agreement.

In divorce mediation, all agreements are voluntary. If the other party can force you into accepting unreasonable terms, or if you feel intimidated by your spouse, the risk of ending up with an unjust agreement is high.

In this case, we recommend appointing a Family Lawyer such as Mandeep Randhawa to help you through the process.

What Happens After Successful Mediation?

The steps after a successful Mediation typically are as follows; the mediator or the parties’ solicitors will draft a comprehensive agreement outlining all the terms and conditions that both spouses have agreed upon during the mediation. This agreement covers crucial aspects such as child custody, visitation schedules, division of assets, spousal support, and any other relevant issues in compliance with UK family law. Each party’s solicitor will carefully review the drafted agreement to ensure its accuracy and that it adheres to legal standards, protecting the client’s rights and interests. Once any necessary revisions are made, the final version is presented to both spouses for approval, ensuring mutual understanding.

Subsequently, the finalised agreement is submitted to the court for approval, where it undergoes a review to ensure legal compliance and fairness. If approved, the court issues a divorce decree, marking the legal dissolution of the marriage. The terms of the agreement become legally binding, and both parties are expected to adhere to its specifications, including actions like asset transfers or support payments.