Alternatives to the family court

Mediation

It is important to understand what mediation is, how it works and whether it can work for you.

Mediation will not be appropriate if there are issues of harm concerning your child, for example allegations of sexual or physical abuse, and/or you have experienced domestic violence, or if there is an imbalance of power within the relationship, for example, because you have a disability or because English is not your first language.

Mediation is a voluntary process where you and your former partner have discussions (which are usually face-to-face but you can ask to be in a separate room from your husband/former partner) with the help of a trained mediator and try to reach your own agreements. You should always seek legal advice on any agreement made with your former partner as it is not the role of the mediator to give you legal advice even if they are a qualified lawyer. Mediators should be impartial and should not take sides. In some circumstances mediators may provide general legal information to both parties during the session if it is appropriate, but they should remain impartial. The mediator is there to facilitate the discussion between you and your partner and has a duty to advise you each to take separate legal advice, either during the process or after.

Mediation is private and confidential and details discussed in mediation or agreements reached cannot usually be disclosed or used against you at any subsequent court hearings. Any financial information that is produced is open information and can be used outside the mediation setting. Mediation agreements are not legally binding. The advantage of this is that the agreement is flexible and can be changed to suit the parties. It also means there are no legal consequences on either party for not complying.

An agreement you reach through mediation can become legally binding by the terms being made into a consent order. A consent order is a legal document usually drawn up by a solicitor setting out what you have agreed during mediation that will then be sent to the court and approved by a judge. Once it has been approved by a judge it will then be legally binding in the same way as a court order. Before signing a consent order, ensure that you receive legal advice from a family law solicitor. If your mediation concerns finances on matrimonial breakdown it is very important that you make your agreement legally binding by creating a consent order or a Deed of Separation (see our guide to financial arrangements after marriage breakdown).

For mediation to be effective to resolve finances further to matrimonial breakdown, full financial disclosure is required to ensure a fair outcome (see our guide to financial arrangements after marriage breakdown). It is important to seek legal advice before attending mediation.

Mediation can be very useful for couples who are willing to be reasonable and are open to compromise. If mediation is successful it can significantly reduce the cost of resolving issues of finance and children following relationship breakdown. Mediation can be very effective but it does not work for everyone.

Mediation Information and Assessment Meeting (MIAM)

For most types of cases you must attend a mediation information and assessment meeting (MIAM) before you make an application to the Family Court.  This includes applications for financial orders and child arrangement orders.

A MIAM is a meeting held with a mediator for the purpose of assessing whether your problem is suitable for mediation and providing information about:

1. mediation,
2. other ways in which your dispute may be resolved without going to court, and
3. whether mediation or other ways of resolving disputes are suitable for your case.

You can choose to attend the MIAM with the other party or separately from the other party.

You do not have to attend a MIAM if one of the exemptions.  The exemptions include the following:

• You have evidence of domestic violence.  For example, he has been convicted of a domestic violence offence, or there is or was a non-molestation order in place within the last two years, or a letter from your GP.  For further details contact our advice line;
• If the application relates to a child, the local authority is involved with the family due to child protection concerns;
• You already attended a MIAM or made an application confirming a MIAM exemption applied within the last 4 months;
• The application must be made urgently because:
  • there is risk to the life, liberty or physical safety of you, your family or your home; or
  • You will suffer significant hardship; or
  • any delay caused by attending a MIAM would cause –
  • a risk of harm to a child;
  • a risk of unlawful removal of a child from the United Kingdom, or a risk of unlawful retention of a child who is currently outside England and Wales;
  • there would be problems with dealing with the dispute – for example evidence will be lost;
• Other reasons, for example you don’t have contact details for the other party, or you need to make the application without notifying him, or he is in prison.

Other exemptions may also apply.  For further details contact our advice line.

If none of the exemptions apply, or you do not have the required evidence for domestic violence and none of the other exemptions apply, then you will need to attend a MIAM.  The mediator may decide that mediation is not appropriate for your case, in which case the mediator will sign a document stating that mediation is not suitable or is not taking place.

You should apply to the court if:

• You attend a MIAM and the mediator certifies that mediation is unsuitable for your case, or that you have attended a MIAM and mediation is not proceeding; or
• One of the exemptions to the MIAM requirement applies;
• You and the other party have tried mediation and mediation has broken down or been unsuccessful.

Legal Aid

If you are not working or on a low income, you may be eligible for legal aid for mediation so you will not have to pay the mediator. You may also be able to receive legal aid for a limited amount of independent advice on the issues you are mediating upon if you are financially eligible for legal aid.  If the other party is eligible for legal aid but you are not, then the Legal Aid Agency will cover the cost of both of you to attend the MIAM (together or separately). For further details about legal aid see our guide to family law legal aid.

Choosing a Mediator

You should ensure that the mediator you use is a member of the Family Mediation Council. To find a mediator see additional support. All members of the Family Mediation Council must adhere to a Code of Practice which details the general principles of mediation as well as training and conduct standards which can be expected from mediators. It also requires that each member organisation must adhere to a clear complaints procedure.

Complaints About Mediators

There is no standard complaints process for mediators. Complaints about mediators should be dealt with by the organisation they are accredited by, for example, solicitor mediators are usually accredited by Resolution. If you have concerns about your mediator contact the Family Mediation Council.

Collaborative Family Law

Collaborative family law can be used to resolve finances further to divorce or matters concerning child arrangements. Collaborative family law involves negotiating with your former partner in a series of face-to-face meetings and through correspondence in an attempt to avoid going to court and to save costs. Unlike mediation, in collaborative law you attend these meetings with your lawyer so you and your former partner will be negotiating with each other with the help of your legal representatives, who must both be trained collaborative lawyers. In addition, psychologists or counsellors can be invited to join the meeting to support you and/or your former partner in reaching an agreement.

If you are able to reach an agreement your solicitor may draw up a consent order (see above). If you are unable to reach an agreement you can still apply for financial relief or for a child arrangements order, but you will have to consult a different solicitor because you cannot use the same solicitor who assisted you in negotiations.

Collaborative law can be a very expensive process and it is important that you ensure your solicitor sends you regular bills and that you keep an eye on the costs. It is also important that you consider whether you will be able to reach an agreement with your former partner or ex-husband through collaborative law. If you are unable to reach an agreement through this process you will have to make an application to the Family Court and instruct a different solicitor or represent yourself. Instructing a different solicitor will add additional costs.

If you have experienced domestic violence then resolving financial or children matters through collaborative law will not be appropriate.

Family Arbitration

Arbitration is another form of dispute resolution where a legally trained person makes a decision which should be impartial after considering all the circumstances. The decision is legally binding if the correct process is followed.

You and your former partner will need to agree on an arbitrator (for details of how to find an arbitrator see additional support). The arbitrator’s role is to consider all the evidence in the case and apply the law to make a decision on how your finances should be split. The arbitrator must be legally qualified and registered to act as an arbitrator in England and Wales. You will need to enter into an agreement with your former partner that the arbitrator will adjudicate the dispute and make a decision on the financial arrangements at the end of the process.

The arbitrator must be a member of the Institute of Family Law Arbitrators.  All arbitrators are qualified family solicitors or barristers who have completed the accredited arbitration course. To find a family arbitrator contact a family law solicitor or the Institute of Family Law Arbitrators.

Arbitration can save money in comparison to going through the family court process but it can also be a very expensive. There are a range of costs for using arbitration including arbitrator fees, the cost of venue hire and each party will have to pay their own legal costs. Therefore, the initial costs for arbitration may be more expensive than going to court but it could save money in the long run. The parties will usually submit their proposals and the arbitrator will set a timetable for financial disclosure and for deciding the final outcome. At the end of the process, the arbitrator will make a decision on how the financial assets should be divided. This is not automatically legally binding and must be made into a consent order and then submitted to the court. The order could be disputed by either party, but it is likely that the court would uphold it unless it decided it was substantially unfair to one party.

The law relating to this issue can be complex and we have provided a very basic overview of the terminology, law and court practice and procedure. We would strongly advise you to seek legal advice by either telephoning our legal advice line or a solicitor.

Please note that the law as set out in this legal guide is the law in England and Wales as it stood at the date of publication (October 2014). The law may have changed since then and accordingly you are advised to take up to date legal advice. Rights of Women cannot accept responsibility for any reliance placed on the legal information contained in this legal guide. This legal guide is designed to give general information only.