Like many other aspects of everyday life, the family courts have been badly affected by the coronavirus pandemic and divorcing couples may find they must endure a significant wait if their case needs to go to court. However, as a way of hopefully reducing ongoing delays, the government has launched a £1 million voucher scheme for mediation services in England and Wales.

While family lawyers and divorce solicitors are largely in favour of alternative dispute options for separating couples in order to reduce the stress and, at present, adversarial nature of divorce cases, it is hoped that this incentive plan does not cause some parties to agree terms which are not in their best interests, particularly those with reduced income or reduced means of seeking income following a divorce.

Yes, mediation can be a less combative means by which to undertake the process of divorce and separation, and to hopefully negotiate child arrangements and financial settlements that are acceptable to all, but the carrot of a cheap path through the process could see some people eschew legal advice which can help them fully understand their rights.

Divorce law and family courts protect the vulnerable

The law in relation to divorce financial settlements and children arrangements is complex and each case is heard and decided by the court on its own merits. In relation to finances, there is no magic formula for working out who gets what and when deciding a financial settlement the court has legal powers to ensure full and frank disclosure. It can penalise any party who wilfully withholds information about their financial situation or seeks to dispose of assets so as to prevent the other party receiving their rightful entitlement.

Likewise, when ruling on a child arrangements order the court will examine closely whether proposed arrangements are in the children’s best interests and there is no rule that one parent has greater rights to contact with children than the other parent.

Mediation can sometimes be a quicker, cheaper way to resolve family law disputes but parties should always seek legal advice from experienced divorce solicitors to ensure that any mediated agreement is not preventing them from attaining a financial settlement or child arrangements that they are entitled to.

It’s also worth noting that unless a mediated agreement is ratified by a judge and turned into a court order, it will not be legally binding or enforceable.

How will the voucher scheme work?

Couples attending a Mediation Information and Assessment Meeting (MIAM) will be assessed and, if eligible, they will be given details of the scheme and how to apply for vouchers worth up to £500 (per couple) to pay for ongoing mediation sessions.

The mediation vouchers will be available in any case where the parties are involved in a dispute or application involving a child or if the parties are involved in a dispute or application regarding family financial matters as well as a dispute or application relating to a child. Both parties must agree to take part in the mediation.

How does family mediation work?

Family mediation involves a trained independent mediator helping the parties to work through their disputes relating to arrangements for children, finances and property following relationship breakdown and separation. The mediator works to help the parties find solutions to any disagreements. Mediation is confidential and held in a neutral space.

A mediator cannot “order” parties to do anything and so if one party wishes to obstruct the process this may make mediation unsuitable.

Does family mediation work?

A study carried out by the Family Mediation Council revealed that mediation was successful or partially successful in more than 70% of cases: 50% of cases examined during the survey reached a full written agreement and 20% reached an agreement on some issues, or on all issues but without creating a written agreement.

Don’t forget you are entitled to legal advice

While mediation can undoubtedly work in certain cases, there are some instances in which it is unlikely to be suitable: for example, if there has been a history of domestic abuse, if there are issues relating to harm of the children, or if there is a quantifiable inequality in the relationship, such as you have a disability or English is not your first language.

Mediators can provide general legal information, but they cannot advise you on your legal rights or provide advice on your legal position.

Family mediation must be voluntary and while you don’t have to be in the same room as the other party, you will need to be prepared to discuss the issues that are being disputed. You can attend a mediation session with your divorce solicitor (this will incur legal costs) and you are perfectly entitled to discuss your mediation with your solicitor. However, mediation is legally privileged and anything said during mediation sessions cannot be used as evidence if the case then goes to a court hearing. And once a mediation agreement is drafted, you should definitely discuss it with your solicitor before you sign.