Mandatory mediation and the Children and Families Bill

Year Published: 2014

The Children and Families Bill is set to become law in April 2014.

Confirming the Government’s commitment to encourage separating couples to consider alternatives to the Court process, the bill states that those wanting to make an application to Court, must first attend a mediation meeting.

This is not new. Since April 2011 anyone making an application Court within relevant family proceedings was encouraged by the Pre-Application Protocol to contact a family mediator to consider whether the dispute was capable of being resolved through mediation. Although, it remains to be seen just how mandatory the requirement in the new legislation will be. It is important that separating couples are aware that there are alternative routes to a settlement that can be followed.

 What are the options?

Mediation helps couples talk about the issues that they are facing regarding the children and in financial matters. With the help of a trained mediator they will aim to reach an agreement that provides security for the future. It is advisable that both parties instruct a family lawyer, who is aware of the process, as once an agreement is reached the parties will be advised to obtain legal advice to check that the agreement is fair. A solicitor should be contactable to provide advice during the process and to consider any agreement reached. The agreement should be put into the form of a Consent Order, which is approved by the Court and is binding on the parties.

Collaborative law enables separating couples to talk about the same issues, but with their own family lawyers in the room at the same time. At the beginning of the process the parties enter into an agreement committing to the collaborative process and to negotiating until a resolution is found. There will usually be a number of meetings, depending upon the complexity of the issues involved. If necessary, external experts can be instructed, for example, in relation to pension sharing. At the end of the process the agreement reached will be put into the form of a Consent Order placed before the Court.

Arbitration is a process whereby the parties agree to use an independent Arbitrator to decide particular matters. There is an agreement between the parties that once the Arbitrator has been appointed, both parties will abide by his, or her, decision.

Negotiation can be successful for certain couples. This can take place directly between the parties, or can be with the help of a family lawyer, possibly via round table meetings. If negotiation is between the parties alone, it is important that they obtain advice to make sure that they both understand what the agreement means and that it is fair. Again the agreement should be placed before the Court to ensure that it is binding on both parties.

There will always be a place for the Court process, but separating couples should seek expert advice as to the appropriateness of taking that route and should consider the alternatives, as mentioned above, which are available.

The Family team at SAS Daniels are all members of Resolution, an organisation of family lawyers committed to the resolution of family disputes that meet the needs of the whole family, especially any children.

If you would like to talk to a family solicitor please contact our Family team on 01625 442100.

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