Mediation is often recommended by solicitors as a cost-effective form of non-court dispute resolution. Mediation enables parties to discuss finances on divorce and child arrangements in a structured environment with the assistance of an independent mediator.
However, mediation is not suitable for everyone and does not guarantee an agreement. In certain situations, the mediator or parties may decide that they are unable to continue the sessions successfully. This may occur for the following reasons:
- The parties have fundamentally different view on the dispute.
- One or both parties are unwilling to compromise.
- Expert evidence is needed.
- A lack of financial disclosure.
- Emotional tensions making productive discussions difficult.
If mediation becomes stagnant, the progress made during the sessions can still be valuable to the process as a whole as it often helps to clarify the issues in dispute, identify any areas of agreement and provides an insight into each party’s position.
Will we Have to go to Court?
No, just because mediation has not worked, this does not mean that you automatically have to apply to the court. There are many other non-court dispute resolutions options which are explained in detail here: Non-Court Dispute Resolution | Stephens Scown.
The most common route from mediation is to instruct solicitors to continue the process on your behalf. This would involve your solicitor corresponding with the other party’s solicitor to take the appropriate steps to progress your case forward. This is likely to involve exchanging financial disclosure, questionnaires, preparing instructions to an expert and sending correspondence to try and narrow down the issues and reach an agreement.
Can Mediation be Attempted Again?
Absolutely. There is no limit on the number of times parties can attempt mediation. As circumstances evolve, further mediation sessions may prove helpful. This is particularly common where expert evidence has been obtained, financial disclosure has been prepared/exchanged and parties have received independent legal advice.
What happens to the information shared during mediation?
The discussions in mediation are confidential and conducted on a “without prejudice” basis. This means that proposals made during mediation cannot usually be disclosed to the court if proceedings are commenced.
This allows the parties to negotiate freely without worrying that anything said will later be used against them.
Will a Judge Take a Failed Mediation into Account?
Family courts generally encourage parties to explore alternative dispute resolution methods before commencing court proceedings. While no-one can be forced to reach an agreement, the court may consider whether both parties made genuine efforts to resolve matters outside of court. An unreasonable refusal to engage in mediation is unlikely to have a substantial impact on the outcome. The court’s primary concern will be achieving a fair financial outcome based on the parties’ circumstances.
Summary
If mediation fails, it does not mean that a settlement is impossible or that the only option is to go to court. Parties can continue negotiation and return to mediation at a later stage.
Mediation should therefore be viewed as a valuable opportunity to resolve matters amicably, cost-effectively and often more quickly. Even when it does not produce an agreement it can help provide clarity on the issues between the parties and what is needed to help the parties move closer to a financial settlement.
Please get in touch with our Family Law team if this is something you need advice on.