Exploring the Benefits of Mediation as an Alternative to Court

Family Mediation Week runs from 16-20th January 2023. This campaign, run by the Family Mediation Council, raises awareness of family mediation and the benefits it can bring to separating families.

Mediation has many advantages over going to court, including being faster, cheaper, and allowing the parties to remain in control and resolve important issues with dignity and respect. This article looks at these benefits and how mediation might work for you and your family.

Family mediation is a process in which an impartial third-party mediator helps separating couples resolve disputes and make lasting arrangements for the future of them and their family, without going to court.

Overall, using family mediation to resolve issues has several advantages over going to court and is well worth considering.

One of the biggest benefits of mediation is that it allows for a faster resolution than the traditional court process. This is because mediation is a voluntary process, with no set court timetable or deadlines to adhere to. This means that the parties involved can work at their own pace and resolve their dispute as quickly or as slowly as they need. This flexibility is especially useful if the parties involved cannot meet at the same time or place, as mediation can usually take place over the phone or online.

Another advantage of mediation is that it is much cheaper than going to court. This is partly because no court fees need to be paid, and there are no legal expenses to be incurred. Mediation can also be a much quicker process than going to trial, which means the costs associated with the process are lower. In addition, mediation can take place anywhere convenient for the parties involved, meaning that travel costs are also reduced.

The parties involved in mediation also have much more control over the process than they would in a courtroom. This means they can tailor the process to suit their needs rather than adhere to court rules or procedures. For instance, the parties can decide to have their mediator present for the duration of the process or to have both parties present for the entire process. This is not possible in a court process, where the judge makes all decisions.

Finally, and potentially the most important in family mediation is that it has the added benefit of preserving relationships between the parties involved. This is because it is a non-adversarial process, allowing the parties to come together to find a solution that works for both. This is not possible in a courtroom, where the parties are usually pitted against each other, and the judge usually determines the outcome.

Family mediation is a structured negotiation, led by an independent mediator, between separating couples or family members in dispute. It is not therapy or counselling. The mediator does not give legal advice or take sides. The job is to help the parties reach their own agreement on the issues that matter to them, whether that is children, finances, property or all three.

For most separating couples mediation is faster, cheaper and less stressful than court. It also gives the parties control over the outcome, which the court process does not.

Before issuing most family court applications, a party must first attend a Mediation Information and Assessment Meeting (MIAM). The MIAM is a single meeting with an accredited mediator to assess whether mediation might be suitable. There are exemptions for domestic abuse, child protection cases and genuine urgency, but otherwise the requirement is mandatory.

The MIAM requirement reflects the strong policy steer from the family courts that contested litigation should be a last resort.

Mediation can cover all the issues that arise on separation: where the children live, how they spend time with each parent, school choices, holidays, financial settlements, division of the family home, pensions, child maintenance and ongoing communication between the parents.

It works equally well for divorcing couples, cohabiting couples and extended family disputes such as grandparent contact arrangements.

Mediation is not suitable for every case. It does not work where there is a power imbalance between the parties, particularly in domestic abuse cases, where one party will not negotiate in good faith, or where urgent court orders are needed (for example to prevent a child being removed from the jurisdiction).

The MIAM itself is designed to screen for these issues, and the mediator will say so if mediation is not the right path.

Most family solicitors, ourselves included, support mediation actively. We can prepare clients for mediation, advise them between sessions, and convert the mediated outcome into a legally binding consent order at the end. The combination of mediator and solicitor often gets the best result: the mediator drives the conversation, the solicitor protects the legal position.