Thursday, July 15, 2010

Will Mediation work for me?

Mediation is suitable for most separating couples. However, if there are issues around domestic violence or if one party is bullied or oppressed by the other, then Mediation may not be the answer.

Also, some people feel too raw in the divorce process, too upset and perhaps unable to sit in the same room as their partner.

In some circumstances, Mediation can be conducted in separate rooms but mediation is a voluntary process and both parties need to agree to proceed on this basis.

A Mediated Agreement is not legally binding and either party can withdraw from it prior to the Consent Order being approved by the Court. However, most people having gone through Mediation, are prepared to endorse their agreement as they feel a level of commitment to it.

It is always advisable to have a Solicitor assisting throughout the Mediation Process. The Mediator is there to supply details of the options available. However, the parties' individual Solicitors can advise them of their legal rights, obligations and expectations and ensure that they are aware of this prior to participating in Mediation.

The Solicitors should also advise the parties on the terms of the Mediated Agreement prior to filing it with the Court.

Does Mediation work?

Given that the Courts do not collect statistics as to how many Consent Orders are obtained via Mediation or otherwise, it is difficult to assess how successful Mediation is. Mediators are not advised after they have completed their task whether the couple have gone to have their agreement ratified into a Consent Order. It is the public policy to encourage Mediation and more and more couples appear to be choosing this route. With regard to Children Act Applications some Courts have a pilot system where the parties are actively encouraged to Mediate and a Mediator is available at Court to assist them at the First Appointment.

The public policy in Children Matters is that is better not to have an Order. A Court Order will only be given if it is judged to be in the child's best interests to do so. The policy is that it is in a child's best interests for their Parents to work out their own arrangements for that child, which is why couples are encouraged to Mediate in order to assist in this process.

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