Divorce mediation can offer separating couples a quicker, more cost-effective and risk averse approach to dealing with child arrangement and financial orders.
In this practical guide, we look at what’s involved in the divorce mediation process when deciding post-separation financial arrangements.
What is divorce mediation?
When you decide to divorce or end a civil partnership, you and your former spouse will need to agree how to separate your finances. This is because a divorce or dissolution of a civil partnership does not, of itself, end the financial obligations between former spouses or civil partners.
You may be able to avoid the expense and uncertainty of going to court if you and your ex partner are able to come to an agreement how to divide your assets including pensions, savings and investments. Still, in many cases, any acrimony between a former couple can be a bar to constructive discussions taking place around finances, at least without the assistance of a neutral third party to help maintain a focus and keep the peace.
Divorce mediation, or mediation when dissolving a civil partnership, is a form of alternative dispute resolution in which a separated couple attempt to reach a financial settlement with the help of a mediator, rather than asking the court to decide. Without taking sides, a mediator can help you and your ex agree how to split your finances, in this way helping you to put your feelings aside and to focus on the practical issues that need to be resolved.
How does mediation work in divorce?
If you and your ex partner cannot agree on how to divide your marital assets, you can apply to the court to make a financial order. This is known as the contested route. However, you must attend a meeting about mediation before you can ask the court to decide how the matrimonial pot will be split. This is known as a mediation information assessment meeting (MIAM). The MIAM is the first stage of the mediation process, providing you with an opportunity to get a better understanding about how mediation can help you and your ex to resolve any disputed issues. The MIAM will usually last between 45 minutes to an hour.
If you decide mediation might be helpful for you, and your ex agrees, you can organise the first mediation session. Most divorcing couples will need between 4 to 6 sessions to agree their financial issues, where these appointments tend to last between 1 to 2 hours, although how many sessions you will need will depend on how far apart you and your ex are in your views and the complexity of your respective financial positions. The mediator will also ask you both to produce documentation to prove the detail of your finances by providing evidence like bank statements, mortgage statements and pension valuations.
If, following divorce mediation, you and your ex still cannot reach an agreement, or agree on every aspect of your finances, you can ask a court to make a financial order in respect of any outstanding issues. In many cases, however, mediation will prove to be an effective way to make any money and property arrangements when a marriage ends, in this way avoiding a contested hearing where the litigation outcome cannot always be predicted.
Importantly, mediators can give you and your ex information about how the court will reach any decision, but they cannot give you individual legal advice on your respective positions. They represent neither you or your ex, but rather act as a middle man to help identify common ground and find a way forward on mutually agreeable terms. This means that they cannot advise you as to whether the agreement you reach with your ex is what a judge would consider fair. As such, it is always wise to consult with a solicitor who specialises in divorce cases, in conjunction with mediation, and to get specific legal advice on what you may be agreeing to in the context of your circumstances. It is also sensible to get advice from your solicitor in between your divorce mediation sessions, assuming there is more than one, to check that what you are agreeing to is fair for you.
Is mediation mandatory in divorce?
Divorce mediation is not, of itself, mandatory, although an applicant must usually first attend a MIAM to be allowed to apply for a financial order from the court.
Still, there is good reason as to why the courts encourage the use of mediation in the context of divorce and dissolution proceedings, where mediation can be much quicker and cheaper than asking a court to decide for you. Mediation can also help you stay in control, where no-one will make you do anything against your wishes. Instead, the mediator will help you and your ex to find a solution which works for you both, where mediators work with separating couples in ways that are flexible and tailor-made to their circumstances.
Importantly, any discussions that take place during divorce mediation will be kept entirely confidential, unless and until any agreement is put before the court. If agreement cannot be reached, the court will not be privy to what has been discussed. Equally, you do not have to be in the same room as your ex if you or the mediator decides that working in separate spaces would be preferable. Additionally, for those cases where there is evidence of domestic abuse, the requirement to attend a MIAM will usually be waived.
Is divorce mediation legally binding?
If you and your ex partner can agree on how to divide the money and property from your marriage, you will still need to apply for a consent order to make that agreement legally binding. This is important as any failure to make an agreement binding means that this cannot be enforced by the courts in the event that one party fails to comply with its terms. A legally binding agreement will also protect both parties from any financial claims that they may have against each other after the divorce or dissolution is finalised, for example, any claims on future earnings or in the event of a financial windfall, such as an inheritance.
Having reached an agreement, your mediator should explain what needs to happen to make an agreement between you and your ex legally binding. This will involve the agreed terms being documented clearly and carefully in writing. This written agreement, known in legal terms as a consent order, will then need to be put before a judge for them to approve it. When you and your ex have both had legal advice on your proposals and you are still happy with it, you can ask your solicitor to turn your proposals into a legal agreement. Your mediator should provide you with a written ‘memorandum of understanding’. This is a document that shows what you and your ex have agreed, where you will both get a copy.
You and your ex will usually need to wait until you have a conditional order in the context of your divorce or dissolution proceedings before asking the court to approve any consent order. It is usually far more straightforward to divide the marital money and property before you apply for the legal document to end the relationship, known as the final order. You can still divide money and property after your divorce is finalised or your civil partnership has officially ended, although this may change what you are entitled to get.
How do you make an agreement legally binding?
When asking for the court’s approval of a consent order agreed in the context of divorce mediation, this must be signed by both parties. Either you or your ex will also need to fill in a notice of an application for a financial order, as well as a statement of information form (Form D81), to provide information about your respective financial positions in support of your application for a consent order. You will be encouraged to fill in a joint form, unless there is a good reason not to do so, where this statement is designed to help the court decide whether the agreed financial and property arrangements are fair.
As such, you and your ex, amongst other things, will need to explain concisely the main reasons for the division of assets under the terms of the proposed consent order, especially where assets have been divided unequally. Together with details about the marriage or civil partnership, any children involved, and yours and your ex’s current capital and net income, the court will be able to assess your respective financial worth to make a decision.
The application and statement of information form must be submitted to the court, together with two photocopies of the signed original consent order. If you are divorcing, the signed forms and copies, together with a fee of £53, will need to be sent to HMCTS Financial Remedy, PO Box 12746, Harlow, CM20 9QZ. If you are ending a civil partnership, you must send the paperwork and your £53 fee to the court dealing with the matter.
There is usually no court hearing, where a judge will approve the consent order to make this legally binding if they think that the terms are fair. If the judge takes the view that the draft order is not fair, they can ask you to revisit its terms and change them. It is also worth noting that even though you and your ex have agreed the terms of a financial settlement in principle, you both still have a duty to the court to make full disclosure of all relevant facts.
How much does divorce mediation cost?
The cost of a MIAM is usually between £120-£160. However, divorce mediation sessions will typically cost more, where fees can vary depending on where you live, although you may be eligible for legal aid if you are on benefits or a low income.
If you are eligible for legal aid, divorce mediation will be free. Legal aid may be available to one or both of you, where each person will be assessed separately when it comes to eligibility. If your partner has legal aid, you will be charged for only the second and any subsequent mediation sessions, but the MIAM and first mediation session will be free.
If you have to pay for mediation, you can ask your chosen mediator what their charges are when you first get in touch with them. You might want to phone several local mediators to compare these charges. After the first meeting, the mediator should also be able to give you a more accurate estimate of how much mediation is likely to cost overall, based on the number of sessions that they think that you will need to reach a settlement agreement.
Who pays for divorce mediation costs?
Most mediation companies will quote their fees per person, per session or per hour. This is because each party will usually pay for their own fees for the duration of the service. In this way, each party has a vested interest in progressing matters and reaching an agreement.
Some divorcing couples will agree that the costs of mediation are taken out of a joint account or joint savings. With others, one party will pay upfront and then the costs will be shared as part of the overall financial agreement that they hope to reach. If one party cannot or refuses to pay, it is still open to the other party to pay for the mediation in full themselves if they feel that pursuing this avenue could achieve the best result for them.
Divorce mediation FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
