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Mediation vs. Litigation: Choosing the right approach for your finances and divorce

Resolving finances when going through a divorce can be a stressful and overwhelming time. Therefore, it is important to consider your options in helping you to reach an agreement. One option is to mediate, and this process has been successful for many parties.

In this article we will explain about mediation and litigation to help you decide which option may be best for you.

What is mediation?

It is an out of court process in which both parties meet with a mediator to resolve their issues following separation. Mediation can resolve financial disputes as well as disputes over child arrangements. A mediator is a trained professional who remains neutral and aims to help the parties to reach an agreement.

Mediation can take place in person or online depending on your what is best for all involved.

However, it is important to note any agreement reached at mediation is not legally binding and the agreement will need to be embodied in a consent order and approved by the court to prevent all future claims against each other.

Advantages of mediation

  1. Cost effective – mediation is significantly cheaper to litigation.
  2. Quicker resolution – mediation can lead to a quicker resolution than through the court process which could take years to reach an outcome.
  3. Flexibility – There is more flexibility with mediation in reaching an agreement rather than the court deciding for you. Also there is flexibility as to where the sessions take place.
  4. Mediation has a more predictable outcome than going through the court.
  5. It is in a confidential setting which means that discussions are private and are not in a public setting.
  6. Maintains relationships – parties are usually still be required to communicate after a divorce where children are involved.

Disadvantages of mediation

  1. The agreement is not binding – it is encouraged to implement any agreement reached at mediation, but it is not binding on either party. It is therefore advised to have the agreement reached at mediation included in a consent order and approved by the court to make it legally binding.
  2. One party may be more controlling than the other which means a more vulnerable party could be pushed into an agreement then did not want to agree. However, many mediators are fully equipped to deal with this situation should it arise.
  3. Mediation will only work if both parties are willing to engage in the process otherwise it will be a waste of time and expense.

When is it not a good idea to mediate?

Mediation is not usually suitable if there has been domestic violence, and this is a satisfactory exemption for not having to engage in mediation.

Mediation will also only work and have a chance of being successful if both parties are willing to engage in the mediation process. If one party does not want to mediate, then it is likely mediation will not be effective in those circumstances.

Who should consider mediation?

For parties who are looking to minimise costs and believe they can work together with the other party and a mediator to reach a resolution.

Mediation could still be a successful option even if you resolve some of your issues and not all of them. This will narrow down what you need to litigate on and could save in legal fees.

Important to note

It is important to note if you intend to issue court proceedings, then you be will expected to attend a Mediation Information Assessment Meeting (MIAM) prior to applying to the court unless you are exempt. One of the accepted exemptions is domestic violence.

What is a MIAM?

A MIAM is an initial meeting with a mediator to consider where your matter can be resolved through mediation and without going to court. Unless exempt A MIAM certificate will need to be obtained from a mediator before court proceedings can be issued.

What is litigation in family cases?

This is when the parties are unable to reach an agreement and therefore one party makes an application to resolve the dispute through court.

One court proceedings are issued the case is timetabled for various hearings and directions. The parties present their case to a judge who will decide at the final hearing should settlement not be reached prior to this.

It is important to note that even if court proceedings are issued many cases settle by agreement prior to the final hearing.

Advantages of litigation?

  1. Decisions made are legally binding which means parties have certainty and finality.

Disadvantages?

  1. Expense – it an expensive process which can cost thousands for both parties involved.
  2. Time consuming – the court process all the way to a final hearing is a lengthy process and can sometimes last years.
  3. Can increase animosity in relationships.
  4. Lack of control as allowing a judge to decide.
  5. Can contribute to stress and anxiety of what is already a difficult situation.

Making a decision

Choosing between mediation and litigation requires careful consideration. These are some factors to help decide.

  1. Relationships – mediation is more advantageous to preserve relationships for families.
  2. Costs and time – Mediation is more costs effective and a faster process than court.
  3. Willingness to mediate – If either party is not willing to mediate it will not work.
  4. Complexity – If it is a more complex case then it may require the court’s involvement.

If you believe neither mediation nor court is suitable, an alternative option is for the parties to instruct solicitors to negotiate an agreement on your behalf.

Either way it is always important to obtain legal advice following the breakdown of a relationship.

How can Andrew Isaacs Law help?

Our Family Lawyers have a wealth of experience in dealing with children and financial matters.  Contact us today to arrange a fixed fee consultation to find out how we can help you.

Article Dated 23/06/2024

 

 

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