Mediation and MIAMS:
Mediators are trained to resolve disputes over all issues faced by divorcing and separating couples, or specific issues such as arrangements for any children. A mediator will meet with you both and will identify those issues you can’t agree on and help you to try and reach agreement. Mediators are neutral and do not take sides, so cannot give advice to either of you. They will usually recommend that you obtain legal advice alongside the mediation process and will guide you as to when this should happen. However, trained lawyer mediators will provide legal information to both of you within the mediation if this is appropriate. Some are also qualified to consult with children in mediation.
Once you have proposals you both find acceptable, the mediator will prepare a summary of them together with a summary of the financial information which will be sent to each of you to discuss with your solicitor. After you have both received legal advice and if you are both still happy with the proposals the lawyers will convert the summary into a legally binding document and carry out any necessary implementation.
Since April 2011 there has been a requirement (with some exceptions) that anybody wanting to go to court should attend a Mediation Information and Assessment Meeting (called a MIAM) with an appropriately qualified mediator to find out about mediation and other non-court options. The MIAM helps you to identify if mediation is right for you. It can be conducted face to face or over the phone.
Should you wish to choose this route the mediator will then contact the other party and accordingly conduct a MIAM with them. Should the other party not wish to engage in mediation then you have met the requirement of MIAM and if you want to make an application to the court the Mediator can sign this off for you. If the other party is willing to proceed then joint mediation meetings will be arranged with both parties. The mediator will help the couple to complete their financial disclosure, if relevant, and help them to create a schedule. The aim of mediation is to try to help couples to reach their own agreements on any issue in dispute in a safe and supported environment.
One an mediated agreement is reached the Mediator will prepare a Memorandum of Understanding which the parties can take to their solicitors for advice and ultimately to enable them to draft a consent order for approval by the court.
Many solicitors will do a fixed fee to draw up a consent order; in turn it is drawn up by one of the parties’ solicitor for the others to agree to. This is the cheapest option to all parties.
Under the collaborative law process each person appoints their own collaboratively trained lawyer and you and your respective lawyers all meet together to work things out face to face. Both of you will have your lawyer by your side throughout the process and so you will have their support and legal advice as you go. You and your lawyers sign an agreement that commits you to trying to resolve the issues without going to court and prevents them from representing you in court if the collaborative process breaks down. That means all are absolutely committed to finding the best solutions by agreement, rather than through court proceedings.
Sometimes only a couple of meetings are needed, in other cases four or five. These meetings follow agendas set by you and your husband. You will also dictate how frequently the meetings happen. Once an agreement is reached your lawyers will put it into effect, obtaining a court order where needed. Some reasons why the Collaborative process may work for you are:
- The traditional divorce process at its worse is costly, does little to resolve issues, allows clients little control over the process and encourages clients to litigate which is usually a poor basis for a relationship as co-parents.
- In the collaborative process clients have more control including timing and pacing;
- The process is less costly and more effective;
- Clients work together around the table (not through letters or at court) within a safe environment which encourages resolutions to be achieved;
- Clients pledge not to go to court : the mainspring for resolution;
- The process is more dignified and respectful;
- The process assists in helping clients communicate better;
- All aspects of the parties separation are taken into account
This route is very effective for parties who want the negotiations to be amicable, however, they do not feel strong enough to negotiate on their own and need the support of a solicitor by their side. Each solicitor for either party will work to ascertain what is best for each individual party however within a collective approach.
Lawyer negotiation on your behalf or going to Court:
Some people choose this approach because they think that an agreement is not possible in their circumstances; for others it is the last resort after all options have been exhausted. Usually you appoint a family solicitor who focuses on your interests and who negotiates with the other parties’ solicitor. Outcomes often depend largely on what the lawyers expect would be the outcome of any eventual court proceedings. If an agreement cannot be reached an application is sent to the court, although this can happen straight away if there are urgent issues to be resolved. The court then issues a formal timetable of next steps. You may face long delays before your case is heard. If the court process reaches what is called the Final Hearing, the court has broad discretion to reach a final decision and make a Court Order, based on what the Judge thinks is fair.
Celia Christie offers an initial free no obligation appointment up to an hour to identify the issues and explain the options open to you and how she can help you to meet your needs and achieve the best outcome for you and your family.
Celia can be contacted at Sarginsons Law LLP
email@example.com or by phone on 07436091128.