Mediation to be made compulsory for divorcing couples
Daniel Prince, a partner and family solicitor at Oldham law firm Pearson Hinchliffe, explains that from this date separating couples will go through mediation to resolve any disputes over their finances or issues regarding their children before making an application to Court. Couples will have to attend one mediation assessment meeting, where they will learn about the process and then decide if mediation is right for them.
The requirement will not apply to certain cases, including where one party refuses to attend the assessment meeting, enforcement of an existing court order is sought or where domestic violence is a factor.
The change stems from the family justice review and the desire of this and the previous Government to ease the currently over-burdened court system and reduce the Legal Aid bill. Jonathan Djanogly the Justice Minister said mediation was "a quicker, cheaper and more amicable alternative, particularly where children are concerned".
Family Mediation a Benefit
Daniel Prince agrees that the change to the Family Procedure Rules could be beneficial, for a number of reasons. “Clients wishing to apply for Legal Aid have had to first make a referral to mediation for a number of years now, and it is surprising how many cases that we thought would never settle do indeed do so, thereby saving all the consequent delay, expense and upset of a Court case. There is therefore, no reason why mediation should not benefit parties who are outside the scope of Legal Aid, with the potential added benefit that a successful mediation referral would save people considerable sums in legal fees.”
“Also, the rule change only applies if you are going to make an application to Court, which is a step most good family solicitors do their best to avoid, if at all possible, by approaching the case in a conciliatory and pro-active manner in the first instance. All of Pearson Hinchliffe’s family lawyers are members of Resolution which works to a recognised protocol of promoting these values and we are proud of this approach. So if this approach is successful, an application to Court could well be avoided in any event."
Daniel added, “Pearson Hinchliffe routinely suggest mediation as an option to our clients, if we think it may help to resolve the dispute irrespective of whether or not an application for Legal Aid is to be made. It is certainly not the case that we do not promote the mediation process just to ensure that we can earn more fees from the case.”
Legal Advice is Still Required
If the referral to mediation is made by a party, the other party will be contacted by the Mediator and an assessment will be made as to whether the case is suitable for mediation. If it is not deemed suitable or it breaks down without a resolution, the application to Court can be made. If mediation is successful, the parties will be referred back to their solicitors for advice on the terms reached, and, in most cases, for agreement documents to be drawn up. It is important to be aware that although a Mediator can provide both parties with general legal information, he or she will not provide them with legal advice.
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Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.
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