Keeping Out of Court – Mediation in Family Cases

Keeping Out of Court – Mediation in Family Cases

There are many good reasons for wanting to keep family disputes away from the Courts. One is the cost of legal representation. Another is that the Court system is creaking under the strain of an increased workload and funding cuts. Yet, the main reason is that contested legal proceedings can polarise the parties’ positions.

When people go to Court there is a tendency to see things in terms of winning and losing, which is not always helpful, particularly in cases involving children.

Furthermore, if it is not possible to reach a negotiated settlement during the Court process, a final decision is made by a Judge and that decision may not be welcomed by either party. It is generally acknowledged that a solution that has been reached by the individuals involved is more likely to be accepted by both parties, allowing them to move on with their lives.

Mediation

Mediation is a way of avoiding the Court process but should not be confused with a means of encouraging reconciliation, such as relationship counselling. Mediation is a process to help people who are going through separation reach agreement about how to divide up the assets that they have acquired during their relationship or address issues relating to the care of their children.

Mediator

The Mediator is usually an experienced, qualified family Solicitor who has undertaken regulated Mediation training and who will initially meet with each person individually to assess whether they are both willing to engage in Mediation and whether it is appropriate for them.

If it is suitable for Mediation, joint meetings are arranged with the couple and the Mediator. A Mediator is particularly skilled in enabling both parties to express their views and guide them towards agreement. Some Mediators are able to offer the service by means of Skype or will arrange ‘shuttle’ Mediation if the couple decide they would rather not meet in one room.

Whatever the matter being dealt with, whether it relates to children or finances, the discussions in Mediation are confidential and ‘without prejudice’ which means that the couple are not bound by the agreement until they have spoken to their own Solicitors and the agreement is then put into a legally binding document.

At Kerseys we advise clients about the availability of Mediation and make a referral where appropriate.

We then provide ongoing support during the Mediation process. A client attending Mediation may want to return to their own Solicitor for legal advice in order to confirm that the kind of settlement that is being discussed within Mediation is appropriate.

Having that reassurance from a Solicitor who is acting on their behalf can give the confidence needed to see the Mediation through to a successful conclusion. Alternatively, it may become clear that Mediation is not going in a helpful direction and discussing issues with the Solicitor can help to get the negotiations back on track. Sometimes the decision may be made to bring Mediation to an end.

Taking a family case to Court should always be seen as a last resort.

How Kerseys Can Help

Within the Family Department at Kerseys we always do our best to avoid the need for legal proceedings. If Mediation is not chosen as an option we will always make strenuous efforts to negotiate a settlement. Sometimes applying to the Court is the only way of making meaningful progress, but we try to avoid taking that step whenever we can.

Elaine Webb
Solicitor in Family Department, Kerseys