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Mediation for Divorce: Is Family Mediation any Good?

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Austin Chessell is a qualified Collaborative Solicitor, Child and Family Mediator and regular contributor to The Divorce Magazine.

When it comes to divorce and family separation does the family court have to get involved?

Is it part of the family court decisions that a couple should attend family mediation or go for mediation for divorce?

Here Austin answers your questions on family mediation and how it can help in finding mediation solutions during divorce and family separation.

Mediation for Divorce?

  • How can family mediation help?
  • Is the agreement reached in family mediation legally binding?
  • Can children participate in the family mediation process?
  • Is family mediation for you?
  • How can you ensure that your mediation process has a positive outcome?

If you would like to speak more with Austin about family mediation you can contact him here:

Tel: +44(0) 7920 445832

Twitter: FamilyLawLondon

Linkedin: austin-chessell

 

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Family Mediation – Complex Cases

Published on
Austin Chessell www.thedivorcemagazine.co.uk
Austin Chessell
Family Mediator and
PPC

In this article I will talk about mediation with highly emotional clients, how to deal with emotional clients and some reasons why clients may be emotional.

It has been a real learning experience working with couples over the past four years as a family mediator where there are strong emotions between the clients. It is very different to acting for one client as a solicitor.

The hardest part about arranging the mediation can be obtaining the willingness of the person who did not propose the mediation as mediation is a voluntary process.  Explaining to that person what mediation can achieve for them helps persuade them to try mediation.

As mediators we help:-

  1. Turn around family disputes;
  2. Resolve family differences;
  3. Give children a voice if the parents would like their children to be part of the mediation process;
  4. Save clients’ money by avoiding the fees they would incur if the matter went to court;
  5. Keep the dispute out of court;
  6. Work in conjunction with solicitors if clients need advice during mediation and if they need a solicitor to prepare any mediation agreement into a legal document.

A lot of mediation clients want to resolve their family dispute and save face at the same time.  Mediation allows this to happen.

It may have been many months or years since the couple have seen each other. Sometimes in the joint sessions I provide a sandwich or fruit for the couple to eat as it may have been a while since they have sat round the table to have a discussion at a meal. It can help to calm the atmosphere in the room if there is silence while both of the couple are eating before setting the agenda items.

Examples

One client I mediated with explained to me in the intake session that this may be the last time she was likely to see the husband again as there were no children from the relationship and part of her moving on would be not to see the husband again.

The client was upset that the husband had found another partner and wanted to vent her feelings about this in the joint session. As a mediator I would not allow one client to be abusive towards the other but this seemed to help to clear the tension from the wife who was then more ready to engage in the financial mediation session.

Family Mediation - Complex CasesRelocation mediations where there are children can be very difficult for the parent who is remaining behind even with generous holiday contact and travel details agreed.

In a lot of these cases the parents have their own solicitors, travel to the session separately and there is no communication between them outside of the sessions. In some sessions one client can stand up raging and pacing round the room and the mediator has to calmly ask the client to sit down.

When asked by the client why do I care about what happens to the children I have to give a response that remains impartial. It is often easier for the mediator to focus the clients when there are children being talked about to ensure that both parents change their mind set from that of a warring separating couple to one who both want to be parents who the children see are both continuing to follow their caring responsibilities for the children.

In family mediation there tend to be 3-5 joint sessions if children and financial matters are being dealt with. For clients who have a lot of history and deeply entrenched emotions there are several ways of dealing with this.

I work closely with counsellors who have seen clients outside and also been part of the mediation itself. Also if the clients want to discuss the past before looking to resolve the issues then there can be more sessions working on a therapeutic mediation model. However it is made clear to the clients that mediation is a future focussed process and as mediators we are not trained to act as a counsellor or therapist.

A lot of cases are referred to me just days before a final hearing. Family Mediation cases do tend to be done in 90 minute sessions over several dates but there have been some family mediation cases which have been resolved in one day.

Where clients are highly emotional it can be better for them to have time to reflect in between sessions rather than agree to something when time is of the essence which they may regret later. Also if the case is complex it allows time for the clients to obtain legal advice, tax advice and or pension advice if this is required by them.

Shuttle mediation can be useful where clients find it unhelpful to sit in the same room. There have been cases where the clients started mediation in different rooms and agreed on several issues and then came together in the same room for the final joint sessions.

I am happy to work with the shuttle mediation model however it does slow the process down. I can convey the message of the client but I cannot replicate the emotion and also the clients cannot see each other’s body language. Also if the couple have children they are going to need to continue to communicate with each other after the mediation, attend graduations and weddings of the children which is why if the couple mediate in the same room it can be positive for the children.

Dealing with highly emotional clients

I explain at the start of the joint sessions that when one person is talking they should not interrupt the other person and ask them to agree to this. If emotions do become vocalised during the session it is useful to remind them not to speak while the other person is talking.

If the tone of the conversation does become heated it is sometime necessary to stand up and ask the clients to focus on the issues that they have raised.

grounds for divorce

Sometimes it just needs someone to tell the clients to be mindful about what they are saying and not to take verbal swipes at each other. If they have children they would not like their children to see them behaving in this way.

We use a flip chart to document what is discussed in mediation. On one occasion the client wanted to get out how he felt before discussing settlement options so I let the client write on the flipchart his feelings and then also allowed the other client to do this too. We had a short break and then returned to discuss settlement options.

As mediators we are not there to keep secrets so it is best for the joint sessions to see the clients in the same room. However, with some clients if the tension becomes high in the room I have asked to see clients separately for example 10 minutes each and then asked them to continue together. This can help to get the clients to talk again more constructively.

Some reasons why clients are emotional

Every case is different but clients can be very emotional if one client has found a new partner and the other person in the mediation sessions has not.

The clients can also become very emotional if they feel that there is not much trust between them.

Conclusions

Clients may feel that emotions and the difficulty of the issues may mean that mediation is not appropriate. This is rarely the case but the mediator will carefully assess this at the Mediation Information Assessment Meeting.

I would not want to start a mediation if I did not feel confident it would work. There is always the option to co-mediate the case. I am from a family law background and my business partner, Massy Ellesmere at FAMIA, is from a couple counselling background. I have found it really helpful to mediate with someone from a different professional background especially in high emotion cases.

By trying mediation the client may have options available that do not present themselves at court. I have worked with clients where their parents or relatives have offered a lump sum payment to settle a financial mediation which the Judge would not direct at court.

The couple if they got married planned their marriage together; they know their personal circumstances and routine better than anyone else so it makes sense to attempt to resolve the separation together too.

Mediation clients have commented that they feel that they have achieved more in a 90 minute joint session than one year of litigating through the courts which has been an expensive and stressful experience for them. I rarely see mediation clients return to me once an agreement is reached whereas legal clients if they are not happy with a court decision may decide to return to court so there is no closure on the matter.

Often the clients have a lot of the mediation points agreed which they do not realise so as a mediator it is important to summarise and reframe key points that the other client may not have acknowledged or taken on board to ensure the clients keep talking to each other.

The Children and Families Bill being considered by Parliament at the moment is looking to change the law so that Applicants looking to make an application to the family courts for a dispute concerning children or finances must consider mediation first at a Mediation Information Assessment Meeting. A line by line examination of the bill took place on the 7th January 2014 and a fourth day of the report stage has been set for the 29th January 2014.

 

About Austin

Austin Chessell is a highly accomplished accredited family and children mediator and a family mediation supervisor. He is qualified as a solicitor in

2010 and has practised as a Collaborative Family Solicitor since 2013. Austin has meeting rooms in North, East and West London. He also mediates online and is authorised to do legal aid family work. A member of both the Law Society and Family Mediation Council mediation panels, he has also completed a Level 3 diploma in Counselling and works on a voluntary basis for Families Need Fathers.

www.thefamilymediationcentre.co.uk

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Family Mediation in practice: Case Examples

Published on
Austin Chessell
Family Solicitor and Mediator at Shortands Solicitors

1.    How mediation has helped couples;

2.    When the mediation process has encountered difficulties;

3.    Were those difficulties in mediation terminal or were they overcome in some way?;

4.    The client’s relationship with the mediator.

 

How family mediation has helped couples

“Co – mediation’’ – Case example 1.

A lot of couples attending family mediation like to have two mediators in the room giving a gender balance. From the start the mediation sessions may have a lot of tension in the room and arguments following on from when the relationship ended.  It’s really important that your mediators or at least one of them is very good at dispelling any tension in the room.

We aim to focus the clients’ attention on the issues they have raised in the intake sessions whether they are children, financial or miscellaneous issues pertaining to their family situation. Some of the benefits of using family mediation include:

  • Resolving family disputes outside of court and through mediation is less adversarial.
  • Being in a less informal environment than a court room gives clients the opportunity to make informed decisions themselves.
  • If an order is made at court by the Judge there is a possibility that neither party may like the decision.

 

“Shuttle mediation’’– Case example 2.

shuttle mediation
Shuttle Mediation

When clients cannot bear to mediate in the same room together as in co-mediation, another form of mediation, shuttle mediation, can then be used.  This is where each party is in a different room and the mediator(s) go from room to room working through each issue in turn.

Massy, my co-mediator and I did a co-mediation where there were court proceedings ongoing. The mother was seeking a name change while the father was seeking more contact with two young children. There had been several court hearings before the parties came to mediation. The mother was paying out thousands of pounds for representation at each hearing. The father was representing himself but did not like the adversarial nature of being in court.  At the intake session both parties struggled to be civil towards each other so the first joint session was done as shuttle mediation as were joint sessions 2-3.

A final agreement on the name change and contact was reached in the 4th session but to our pleasant surprise both parties wanted the final mediation to take place in the same room.  

Both parents had realised that after mediation had ended that both would still need to liaise with each other to arrange contact whether this was on the phone or by email and that even at their children’s wedding they are going to need to get along.  The mediation process encouraged the parties to communicate effectively.

“International Mediation’’– Case example 3.

I received an email from a father who was about to relocate with work in Japan.

The mother and father were not married and the child was 6 months old. The father was paying child maintenance which in the mother’s opinion was not enough. The mother was disappointed that the father was not playing an active role in the child’s life while the father was not happy with the fact that no contact arrangements had been made. Both clients were very reasonable and willing to compromise but they felt they needed an impartial third person present to work through when the father could have contact with the child for the four times he was due to return to London each year.

The mother explained what her monthly outgoings were and that even though the father was paying the suggested 15% of his net income for the one child there was a shortfall. When the father could see the figures of the mother’s monthly outgoings compared to what he was paying as child maintenance which I put on a flipchart the father changed his stance.  The father immediately agreed to increase the child maintenance and would update the standing order immediately. I explained it is good if maintenance can be agreed informally.

Parties can approach the CSA if one parent does not want to pay child maintenance, but in future there will be an administration charge for both parties which can be avoided if child maintenance is agreed informally through mediation.

 

Time Saved–Cases generally.

Contact, residence and financial issues can be dealt with through the courts but if these matters go to court for final hearings it could take potentially several years to get a conclusion. In my experience if both parties have mediation sessions regularly and both parties are willing to be flexible about what they seek, mediation agreements can be made in a much shorter time frame. If there are children and financial issues there tend to be 3-5 joint sessions. If it is just child or financial issues then there are around 2-3 joint issues. Joint sessions last for 90 minutes. Intake sessions last for around an hour.

When the mediation process has encountered real difficulties

Child Abduction – Case example 4.

In an intake session it was clear that both parties before they separated were in very high conflict.

The mother had also raised issues that the extended family for the father were making life too difficult for her. Despite this both parties initially wanted to mediate.

The father was having limited contact at a car park or by lifts inside a flat for 15 minutes every alternate weekend. The mother wanted to return to Pakistan with the child while the father wanted to prevent this.

In the first joint session it was agreed that the future contact sessions would take place in a more appropriate venue and that contact would be for longer duration. However, after the first session mediation stopped as both parties could still not trust each other over the child abduction aspect and passport issues were then raised. It was agreed that both parties would return to their solicitors and go to court. In most cases we reach full agreement on all of the issues raised but sometimes it may be that agreement is reached on say 6 out of 8 issues and the remaining issues are dealt with through the court.

 

Financial Disclosure – Cases generally.

Family MediaitonIn mediation some parties want to use the process to decide how the financial assets accumulated from the marriage or cohabitation will be divided.  After the intake session we give both parties a financial form to complete which details all of the assets and debts along with current and future projected income and outgoings. Generally both parties understand and cooperate to give full and frank disclosure before discussing settlement options. However, where one party is convinced that the other party is not disclosing substantial assets the mediation process cannot go any further and it may be that the clients have to use the court process to reach a conclusion.

 

Delay – Cases generally.

Most couples come to mediation wanting to reach a quick solution to their issues. However, some people have approached us to use the process as a delaying mechanism. In these circumstances mediation would not be suitable, particularly in cases where one parent has not been having contact with their children for a long period of time.

In mediation cases where difficulties came about were the difficulties terminal or were the difficulties overcome in some way?

 

Contact – Case example 5.

One couple approached me as a contact order had been prepared at court but it was not defined as to how the weekend contacts and holiday contacts should be structured.

The court order provided that contact should be shared on an equal contact basis. We looked at the work schedule and commitments of both parents and the children. It was difficult for weekends and holiday contacts to be divided equally. It was possible but as the contact would mean a lot of travelling for the children on a Sunday night it was agreed that practically this would not be in the children’s best interests as they would turn up for nursery and school on a Monday morning exhausted.

For the current year 2011-2012 the contact the father missed out on at weekends was increased during the holidays. We also discussed finances in mediation.  It was agreed that the father would look to relocate closer to the mother within the next year so that for the following year 2012 – 2013 weekend and holiday contact could be done on a shared basis.

Men often report that they feel they are being  judged by yet another female in mediation. Do you have any advice?

As mediators we are trained to be impartial whether clients are male or female. As a mediator I am not there to judge the father or the mother but am there solely to help reach an agreement in terms of children contact, residence or how to divide the financial assets from marriage or cohabitation and any other issues such as relocation which is happening a lot more in this day and age.

We do not have telephone conversations with the clients in between mediation sessions to avoid being seen as biased or judging towards one party.

I think that the mediation intake sessions are very important.  It is an opportunity for both clients to assess the mediator to see if they feel they can work together.  In some cases the clients are going to see the mediator for around 6 sessions in total so they need to be comfortable with the mediator.

It is also worth remembering that mediation is a voluntary process so if clients feel that they are not making real progress then they may have to consider other options to resolve their issues.

Austin Chessell is a family mediator at FAMIA (www.famia.co.uk) which covers Inner and Greater London. Austin is also a family solicitor at Shortlands Solicitors (www.shortlands.co.uk) at Hammersmith, London.

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Children in Mediation

Family Mediation Services – Children in Mediation

Published on
Austin Chessell www.thedivorcemagazine.co.uk
Austin Chessell
Family Mediator at FAMIA

Direct Consultation With Children (DCC) in Family Mediation Services

Since training to be a family mediator three years ago, several of my children issue mediation cases have led to the parents deciding that they would like to involve their children as part of the mediation process.

How does a DCC work?

During a DCC, the children first have a session with a qualified Direct Child Consultant where the parents are not present and the children are given the time and space in a safe and confidential place to discuss what they would like their wishes and feelings for the future to be.

The wishes and thoughts of the children are then informed to the parents in a separate meeting so that the desires of the children can then be taken into account when making decisions for the child arrangements for the future.

It is important before arranging a DCC session that the parents sign a consent form agreeing for the children to take part in the session.

When Might involving Children in the Mediation Process be Appropriate?

Both parents may feel that their children should be given the chance to have a voice in the future family structure and can play a part in how new arrangements are going to operate. This may help to allay some of the fears that children have about the parents separating.

Children can be asked to have a session with the mediator at different points of the mediation process.

I have been involved in a case when the father relocated to Japan and the three teenage children and mother remained in London. The three teenage children wanted to find out why the parents’ relationship had broken down as this had not been explained to them. The three children had only been having contact through email and wanted to use the session to arrange when they could have direct contact with their father.

In other mediation cases the parents had previously been litigating in court to decide which A-level school the child should attend. When the child attended the direct consultation a school was proposed that neither parent had considered which helped to decide which school should be applied for and avoided further litigation.

It can also be useful to discuss the children’s on-going relationships with the wider family.

Children in MediationInvolving children in mediation will not always be the best option but from my experience of working with children at a contact centre for over ten years most children like to be given the chance to be heard in person.

Parents will be informed before the mediation session with the child that:-

  • The children will not be asked to make the decisions and choices;
  • The mediators respect their parents’ authority;
  • A child will not be seen without both parents’ consent;
  • Parents will be briefed clearly how the mediation session with the child works and the purpose of the meeting before asking if the child would like to be part of the process.

The mediator has to respect the confidentially of the information the child shares with the mediator unless there is a risk of harm.

I often get asked at what age children should be mediating. I personally would find it hard to mediate with a child younger than 8 years old. This really is down to the parents’ view on the child’s capacity to use and understand the opportunity. I have not experienced a situation where a child has refused to be part of the mediation process yet.

For cases that have complex issues I would look to co-mediate the children session.

Children in MediationSome children have preferred to come straight after school while other children have expressed a preference to mediate at the weekend. It is also discussed with the children who will bring them to their session and where the person collecting them should wait. The children are also told when the feedback will be given to the parents and what format the feedback will take.

Meeting with the children will not resolve all of the issues but from my experience has in several cases aided communication at a difficult time. The childrens’ needs are given paramount consideration in the process. A lot of children have liked the session with the mediator as they know the mediator is independent from the family and will not take sides to their expressed views.

The child mediation sessions are not therapy as the mediators are not trained for this but children have commented to me that the mediation session helped them to understand the changes that were about to take place, find their own way to cope with the separation when they may feel that they have to take sides and to express their feelings about the separation. It is important to acknowledge how the child feels and have soft drinks available along with time for short breaks if the child wants this.

If the child wants to have support from people other than their family it can be explored if there is someone at the child’s school or a school counselling service who may be of assistance.

I believe that where it is appropriate children should be given the opportunity to be part of the mediation process. From my experience children do not want to be involved in any conflict arising from separation but would like to help shape their future arrangements particularly on shared parenting issues by voicing their views.

Austin Chessell is a Family Mediator at FAMIA www.famia.co.uk and Family Solicitor at Shortlands Solicitors www.shortlands.co.uk .

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What is family mediation

What is Family Mediation?

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1.    What is Family Mediation? This is a process by which divorcing or separating couples come together to discuss issues that they need to resolve once divorce is over such as financial issues and child contact issues

2.    How does the mediation process work? There are different ways of conducting the mediation process, the most common being where you and your ex-spouse sit in the same room with your mediators (usually two) to discuss the issues over a few sessions.  If the tension between you and your ex-partner is so great that you are unable to sit together, then there is what is called shuttle mediation, where you are both in different rooms and the mediators work with both of you by moving from one room to the other.

3.    Is it for everyone? Family mediation is not for everyone but it is for the vast majority of people.  There are however instances where it will be next to impossible to conduct a mediation process such as where there is domestic violence, alcohol and drug abuse and serious mental health issues.

4.    Do I have to see my ex-partner? No, you don’t have to see or meet your ex-partner during the mediation process.  Depending on the centre or place where you meet, there might be different waiting areas and you may work through the process by sitting in different rooms and having the mediators move between the two of you.

5.    What role do the mediators play? The mediators are there to work through your issues with you.  It is important to note that they are not there to give you any advice or tell you what to do.

6.    What are the principles of mediation?

  • Confidentiality:  Whatever goes on in the session, remains in the session.  What is said cannot be repeated in court or elsewhere.  The only time this rule will not be observed is when there is a risk of harm to either party or their children.
  • Voluntary:  You don’t have to attend family mediation if you don’t want to and you can leave at any time.  There is no pressure to go through with it to the end, nor into making an agreement.
  • Impartiality of mediator: as mentioned above, the mediators are not there to take sides or give advice.  Their role is to help you through the process of negotiation, finding solutions and reaching agreements.
  • Fairness: the mediators work with you to help you reach agreements and solutions that are deemed fair within the framework of the law.
  • Joint decision-making:  this is your session and your time, mediators are there to help you both make arrangements and reach decisions that suit you both.
  • Mediation is available to all who want to work in this way but might not be right for all.
  • Child-focused: Family mediation helps parents reach a parenting plan that focuses on the needs and views of their children.

7.    What are the benefits of mediation?

  • You are in total control of the outcome of the mediation process
  • Helps parents reach an agreement that suits both of them and also that is suitable for children
  • The cost of mediation is considerably lower than going to court
  • Successful mediation helps minimise the negative impact of divorce on children.

8.    How long does it take? Family mediation takes on average between four and six sessions spread over several weeks or months.

9.    How much does family mediation cost? The cost for family mediation varies depending on whether you go private or down the public funding route You can find private family mediators here –  NFM. FMA

10. Am I eligible for public funding?  This will depend on your capital and income.  Your mediator will be able to assess this with and for you. For more information, visit the Legal Services Commission website

11. Do I need a solicitor?  How does family mediation fit into divorce?  Family mediators can give you legal information but not advice so your mediator might encourage you to consult a solicitor if it is felt appropriate.

12. Is the agreement reached legally binding? The mediation agreement is not legally binding.  It is left to you and your ex-partner to put whatever you have agreed on into practice.  To make it legally binding, consult your solicitor and get a legally binding agreement to be drawn up.

13.  How can I find a mediation service? If you’re in London, speak with me.  I am a trained family mediator and work mainly in South London.

Warm hugs,

Soila

About the Author

Soila is the founder of The Divorce Magazine and creator of the online course – Helping Children Cope with Divorce

She is known for taking away the pain of trauma and loss in children, adolescents and their families and is the author of “When Love is Broken. A read-together book for children and parents going through divorce and separation.

Soila holds an MSc in Psychoanalytic Developmental Psychology from UCL (University College London), is an accredited Positive Parenting Program (Triple P) practitioner and a trained Family Mediator.

Soila is a Graduate Member of the British Psychological Society.

You can contact her on 07850 85 60 66 or via email soila@thedivorcemagazine.co.uk 

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Mediation Matters

Relocation and Family Mediation Matters

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Family Mediation www.thedivorcemagazine.co.uk
Austin Chessell Family Mediator and Collaborative Lawyer

Austin Chessell looks at some of the main principles of the law on International Relocation and discusses how parents can use them in family mediation as an alternative to going to court to help them shape their own agreement on whether relocation with children should take place.

With the growth in cheap flights and increasing employment prospects arising from globalisation, it is becoming more common for separated parents to consider permanently relocating abroad and wanting to take their children with them.

Consent needs to be given by the non-relocating parent for the relocation to take place which is rarely easy to obtain as it inevitably creates further tension between the parents and re-opens the pain experienced during the initial post-separation childcare discussions.

The non-relocating parent often fears losing all contact with the child if relocation happens.

Where relocation is contested, it is worth considering what the main legal principles are which determine whether the relocation should take place and whether consent is best obtained through the courts or by mediation.

In my experience, mediation is often more successful where parents have a good understanding of these legal principles and can then use them to shape their own relocation agreements.

The leading cases which parents need to be aware of are:

Payne v Payne [2001] EWCA Civ 166

This was an unsuccessful appeal by a father against an order allowing the mother (who significantly was the main carer) to remove the child to New Zealand. The guidance in this case is known as the ‘Payne Test.’

The test means that the court must consider whether the proposed relocation:

  • derives from a genuine desire to start a new life abroad (i.e. not being selfishly motivated to cut one parent out of the child’s life)
  • has been well thought out and researched having regard to the practicalities of the situation.

If the application to relocate is deemed to be genuine and realistic, the court must then weigh up:

  • if the opposing parent’s reasons are based on a genuine concern for the future child’s welfare, or if there is an ulterior motive.
  • what effect the relocation would have on the relationship between the parent who is not relocating and the child. The court will also need to consider the extent to which this would be balanced by any new relationships that the child would form in the relocation country.
  • what the impact would be on the parent who proposed the move if the application was refused.

While taking the guidance into account, the court’s paramount concern will always be the child’s welfare.

However, in Re K [2011] EWCA Civ 793 the Court of Appeal ruled that the only point of law from the Payne case was that the child’s best interests must be the paramount consideration of the court. In this case, (unlike Payne) care was shared between the parents.

The court decided that in shared care cases the application should be decided on the facts of each case, the welfare of the child and the statutory considerations which are set out in s.1(3) of the Children Act 1989, often referred to as the ‘Welfare Checklist’.

In Re K a father brought a successful appeal against an order which gave the mother permission to leave and take the children to Canada.

The court confirmed that in the circumstances of this case, the approach followed in Payne v Payne was not appropriate because care was shared between the parents which required a deeper analysis of the impact of the relocation on the child. As a result of this case, a lot of parents may now find it harder to persuade the court that the relocation should take place where there is a shared care arrangement in place.

Payne is only applicable where the relocating parent is the main carer.

Consideration must be given to all of the facts.

Key findings from relocation case law are:

–        The welfare of the child is the paramount consideration and all other criteria should feed into this.

–        In deciding which solution will best meet the child’s welfare, consideration should be given to the guidance set out in the Welfare Checklist where care is shared and to the Payne Test where there is a main carer for the child.

–        Leave to remove applications must be made in a way which does not obstruct contact nor weaken the child’s relationship with the non-relocating parent.

–        The relocating parent must have planned the move having regard to the practicalities e.g. it is better if the move is at the end of the school year rather than in the middle of the school term, having good access to healthcare, immigration laws not being a major obstacle and the non-relocating parent still being able to still have good contact with the child.

–        The court will have regard to the impact which a refusal of the application will have on the relocating parent where s/he is the primary carer e.g. the primary carer feeling isolated and lonely if the move is not granted.

–        It is important in every case to consider what the effect of the reduction in contact time with the parent who is not relocating will be on the child.

–        If the child is an older child then its wishes, views and feelings will carry more weight in the relocation decision.

As a mediator my role is different to when I am acting as a solicitor in that in mediation I can only share the above legal information with mediation clients but cannot advise them.  Parents can then use that information and seek legal advice from solicitors where appropriate to make joint decisions on the relocation through mediation.

In  August 2013, Dr Rob George from Oxford University found in a report called Relocation Disputes in England and Wales: First Findings from the 2012 Study that one-third of all requests for relocation are not permitted by the family courts.

In the current economic climate, parents are questioning why they should spend potentially tens of thousands of pounds on a relocation case involving several hearings when the case can be mediated in a quicker and more cost effective way (especially where a relocation allowance has not been provided by an employer) and, in light of Dr George’s report, may stand a higher chance of success.

Every mediation case is unique based on the client’s circumstances, but the following are issues that commonly arise in international relocation cases which parents (and mediators) need to consider:

  • Childcare time – when should the contact take place and where?
  • Who is booking and paying for the international travel?
  • If the child is young how will they travel?  Will relatives need to be involved to ensure travel can take place.
  • Will contact between the child and the non-relocating parent take place during term time and in what form? e.g. face to face, email, phone or Skype?
  • Making decisions for future education, after-school activities and medical treatments – it may be that the parent who is not relocating wants to visit the school abroad or neighbourhood before any schooling decisions are made.
  • Being provided with copies of future medical records and school reports.
  • If an order is prepared after mediation, will this need to be mirrored abroad? The clients will need to liaise with their legal advisors here and abroad to get this confirmed.
  • If the order is not followed, should the relocating parent provide a legal costs allowance for the parent who is not relocating? There may not be funds for this but in some cases, there may be.
  • Will the parent not relocating have more contact prior to the move?
  • Will the parent agree for the relocation to be for a defined time before returning?
  • Will the children return in the future for their university education? If the children are old enough and the parents agree, the mediator can meet with the children to find out their wishes and feelings on this and then pass the agreed information back to the parents before a decision is made.
  • How will extended family members remain involved with the children?
  • Will the relocation take place in a way that is not disruptive to the child?

I have worked on relocation cases through the courts as a solicitor and through mediation as a family mediator. In my experience, parents communicate better in mediation than they do in litigation as the focus is on collective interests not fixed positions.

If a parent is unhappy with a court decision, litigation will most likely continue with appeals being made, but, in mediation, parents tend to respect what was agreed and rarely look to amend a Memorandum of Understanding.

With Mediation Information Assessment Meetings (MIAMs) likely to become compulsory for all applicants if the Children and Families Bill 2012-2013 is enacted, it would not be surprising if more international relocation cases are resolved through mediation rather than through the court system.

About Austin

Austin Chessell is an accredited Family and Child Mediator at FAMIA (www.famia.co.uk) across Inner and Greater London. Austin is also a Professional Practice Consultant.

Austin is a Collaborative Family Solicitor at Feltons Solicitors in Knightsbridge.

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Family Law Mediation – “But what about the Children?”

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Paul Sandford
Paul Sandford
Mediator and
Tribunal Judge

In family cases involving children, the law is clear-the welfare of the child is the paramount consideration.

However, the adversarial UK court system that people so often use is such that even in the best run of cases, this all-important principle can be overlooked.

All too often separating couples and other relatives confuse what is in the child’s best interest with what they want and not uncommonly their lawyers end up writing tit-for-tat letters to one another which invariably include inflammatory and very hurtful contentions.

In all of this, the children can be forgotten. Their day-to-day lives suffer, their schoolwork suffers and the disruption in their routines can literally turn their lives upside down.

In some instances their long-term development can suffer. Non resident parents and their children can be separated for months!

Mediating child related disputes means that whilst bitterness and recrimination cannot be completely ignored, they are put in perspective.

Family mediators ensure that the disputing parties focus on what is important and help them to find common ground and forge a new found relationship that will help them work together in the future.

Going to mediation means that it is much more likely that a non resident parent will see his/her children more quickly and more often. For the children’s sake mediate!

ABOUT PAUL

Paul Sandford (www.albertsquaremediation.co.uk ) is an accredited civil mediator and Tribunal Judge. He is also an associate of a Birmingham-based firm of solicitors, My Business Counsel.

He mediates for a leading UK charity and has the benefit of having worked as a solicitor for around 25 years.  He has also worked as a trainer and university lecturer and has considerable experience of working with people who are disabled or who do not have English as a first language.

As well as being Regents University accredited, Paul recently completed ADRg civil/commercial and family training .

He has particular  knowledge and experience of housing, property/commercial, medical and public law issues and employment, workplace, family and educational disputes. He is a member of two mediation panels: Clerksroom, which has excellent conference call facilities, and the Business Mediation Group. In his spare time Paul enjoys cooking, football, test cricket and listening to the blues, and fundraises for his school.

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Divorce Mediation vs Family Court
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Divorce Mediation vs Family Court

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Suzy Miller www.thedivorcemagazine.co.ukWe often hear that Mediation is “better for the children” – but when it comes to making the decision divorce mediation vs family court many people are unsure which way to turn.

Suzy Miller interviewed Divorce Mediators John Stebbing and Wendy Still of Stephen Rimmer LLP and he explains why using divorce mediation instead of the courts is a wise choice

John explained how the adversarial nature of divorce is based on recent history but how this no longer needs to be the way the process is carried out.  He spoke of a successful mediation where a father had not seen his children for 3 years, but through using mediation techniques even at the late stage of the case being handled by the courts, a clever resolution was found.

The edicts from the court were in practice unrealistic, asking the father to write letters to his small children as his only way of contact with them – yet the poor father had no way of knowing what to write because he had no knowledge of the daily lives of his children.

This whole process was taking a very long time with long gaps between court dates, which was leaving his children feeling that he didn’t care about them as he was struggling to know what to write to them.

Through mediation, the couple learned to communicate, and the father got to know more about his children which meant that he was then able to have something meaningful to write in the letters.

Mediation is known to help parties reach an agreement which is suitable to meet their own particular needs rather than a court directing what will happen in theirs and their children’s lives.  Families know what will work best for them so it makes sense that they decide how their lives will move forward.

There are also financial benefits of going through mediation as opposed to family court.  For instance, going to court very likely means taking your solicitors with you which is a very expensive process as it maybe lengthy and may entail more than one visit.

Also, the adversarial nature of the the family court route means that more likely than not, there maybe long-term damage done within the family and beyond, demolishing any existing relationship – intentionally or not.

Some people are nervous about mediation and benefit from attending an initial MIAMS session where you learn about how it works and what you can expect from the process.  Even people who are dead against it are usually acting out of fear of the unknown.

“My recent experience has been that even if the parties or one of them doesn’t think mediation will help or work, they are surprised once they have attended at how helpful it ends up being.  It is, of course, now a statutory requirement (at least a MIAMS is), therefore the best that can happen is that they reach a suitable compromise between them enabling each party to move on with their lives.” says Wendy

So, divorce mediation vs family court?  You decide.

Interview by Suzy Miller of The Alternative Divorce Guide and creator of The Divorce First Aid Kit

 

 

 

 

 

 

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Family Court Leaves Children In Uncertainty For Nine Months
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Family Court Leaves Children In Uncertainty For Nine Months

Published on
Alison Bull
Alison Bull
Partner
Mills & Reeve LLP
Donna Morgan
Donna Morgan
Counsellor and Therapist
Donna Morgan Counselling
Jane Ingleby
Jane Ingleby
Partner
Mills & Reeve LLP

 

 

 

 

 

 

Private law family court cases took an average of nine months to conclude over the last two years, meaning children involved in proceedings are effectively spending the equivalent of a full school year or around six summer holidays in legal limbo, new analysis reveals.

The research, conducted by leading law firm Mills & Reeve, used Freedom of Information requests submitted to HM Courts and Tribunals Service (HMCTS) to obtain detailed data on private family court cases across 2024 and 2025, including case volumes, duration, hearing rates and regional variation.

Across private law, the family courts dealt with 44,494 cases in 2024, with an average duration of 41.8 weeks and 2.5 hearings per case. In the first half of 2025, there were 20,075 cases, with an average duration of 39.7 weeks and 2.4 hearings per case.

Commenting on the findings, Alison Bull, partner at Mills & Reeve, said: “It’s clear that too many families are still facing significant delays in the family courts, with cases routinely lasting around nine months. For children, that is not just a legal process on paper, it’s the equivalent of a full school year spent in uncertainty or around six summer holidays. Research shows that outcomes for children and young people can be negatively affected by ongoing parental disagreement and conflict, which can further feed into that uncertainty.

“While there are some signs of modest improvement in parts of the system, overall progress remains limited and uneven. The picture continues to point to sustained pressure on the family courts, with persistent delays and variability in outcomes across different types of cases and regions, indicating that underlying challenges in capacity and timeliness have not yet been fully addressed.”

These delays can prolong disputes and make it more difficult for families to move forward, leaving children without stability or certainty while arrangements remain unresolved. Donna Morgan, an experienced counsellor with more than 26 years of practice supporting children, young people, adults and families, said:

“In my experience, it’s often the uncertainty surrounding separation and divorce that has the greatest emotional impact on children. Children are remarkably resilient when they feel safe, informed and supported. However, when decisions remain unresolved for extended periods, children can be left feeling anxious, confused and emotionally unsettled.

“Children rely on stability and predictability to feel secure. When they are unsure where they will live or when they will see each parent, many begin to worry about things they cannot control. What they need is reassurance, consistency and confidence that the adults around them are working to protect their wellbeing. This can make a significant difference to a child’s emotional health both during separation and in the years that follow.”

Across both years, the North West remained the highest region for hearings per private law family court case across both 2024 and 2025, recording an average of 2.8. Meanwhile, London recorded the lowest average hearings per case in 2024 at 2.3, while Wales recorded the lowest average in 2025 at 2.1.

As a result of these delays, family arbitrations in England and Wales have doubled since 2023, according to figures from the Institute of Family Law Arbitrators. This followed a rule change in 2024 requiring parties to consider alternative forms of dispute resolution before proceeding to court.

Family arbitration is a private process used to resolve financial and children arrangement disputes when couples separate, providing a binding decision without the need for court proceedings where agreement cannot be reached through mediation or negotiation. It can be used to resolve disputes concerning children as well as financial matters.

Jane Ingleby, partner at Mills & Reeve, added: “When court timetables are stretched, families often benefit from considering alternative routes to resolution. Solutions like family arbitration offer a private and structured way to resolve disputes about finances and children without the delays of court. 

“It allows parties to choose an experienced decision-maker, set more flexible timetables and reach binding outcomes more quickly, while maintaining confidentiality. For many separating couples, it can provide a more efficient and focused way of resolving issues at what is often a very difficult time.”

Donna has also shared five tips for parents supporting children through separation:  

  • Provide age-appropriate honesty: Children need truthful information that is appropriate for their age and level of understanding. 
  • Maintain routines wherever possible: Regular routines around school, activities, mealtimes and bedtime help children feel secure.
  • Keep children out of adult conflict: Children should never feel responsible for managing communication between parents or be asked to take sides. 
  • Encourage emotional expression: Create opportunities for children to talk, ask questions, draw, play, or express their emotions in ways that feel comfortable and natural to them. 
  • Offer frequent reassurance: Remind them that the separation is not their fault and that the adults around them are working together to keep them safe and cared for.

Read more articles by Mills & Reeves LLP.

About Alison Bull

Alison is a highly experienced family mediator, financial and children arbitrator, and lawyer. She is passionate about sorting things out without attending court if possible, and used to handling complex, conflictual situations in England & Wales and internationally. She focuses on the bigger picture and the best interests of children, and is an effective litigator when required. Alison helps clients to agree parenting plans, and with issues about property, businesses, trusts, pensions and international assets. As well as working with individuals, she has conducted many cases working with separating couples who want to reach agreement together in mediation or with the advice of one lawyer.

About Donna Morgan

Donna Morgan is an experienced counsellor with more than 26 years of practice supporting children, young people, adults and families. She specialises in anxiety, trauma, family relationships, separation and emotional wellbeing. Drawing on a humanistic and trauma-informed approach, Donna helps parents and children navigate significant life transitions with greater emotional safety, resilience and understanding.

Alongside her private practice in Surrey, Donna has extensive experience working within educational settings and supporting families through periods of change, conflict and emotional challenge. Her work focuses on helping parents better understand their children’s emotional needs while building healthier communication and stronger family relationships during times of transition.

About Jane Ingleby

Jane is a highly experienced family law solicitor, with a particular focus on complex financial and children matters. Her practice includes high-conflict child arrangements, allegations of alienating behaviours and domestic abuse, UK and international relocation and surrogacy.

She is also highly skilled in advising on the financial aspects of separation, especially in cases involving businesses and trusts. In addition, Jane provides expert guidance on wealth protection, including pre- and post-nuptial agreements.

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Divorce: How a Family Law Solicitor Can Help You Resolve Matters Out of Court

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Elspeth Kinder, Head of JMW’s Family Law Team, discusses how a family law solicitor can help clients resolve divorce matters out of court through mediation, negotiation, arbitration and other strategic solutions.

For many individuals, divorce involves far more than the legal process of bringing a marriage to an end. It can include making decisions on complex financial arrangements, business interests, property portfolios, pensions, trusts. Those divorcing may also have concerns around privacy, family relationships and future financial security. In the right circumstances, resolving matters out of court can provide a constructive, flexible and discreet way forward. With the support of an experienced family law solicitor, it is often possible to reach a fair outcome without the intervention of the court, whilst retaining greater control over the process and the overall approach to negotiations.

Clear advice from the outset

Taking legal advice at an early stage can make a significant difference to how your case progresses. Particularly in high net worth divorce matters, there may be immediate questions around financial disclosure, valuations, liquidity, tax, and the best way to protect your position. An experienced family law solicitor will understand the issues from the outset, identify the priorities and develop a strategy that is tailored to your circumstances. This early clarity can reduce unnecessary conflict and place negotiations on a more productive footing.

Choosing the right form of non-court dispute resolution

There are several ways to resolve divorce-related issues outside of court, including solicitor-led negotiation, mediation, collaborative law, and arbitration. Each process works differently, and the right option will depend on the complexity of your case, the level of cooperation between you and your spouse and the outcome you are trying to achieve. Some cases benefit from the flexibility of mediation, while others may be better suited to arbitration where a binding decision is needed on a particular issue. A specialist family law solicitor will explain the advantages and limitations of each route and help you choose the most appropriate process for your circumstances.

Protecting your interests in complex financial cases

High net worth divorce cases often involve assets that require detailed analysis, such as family businesses, investments, inherited wealth, offshore structures, trusts and substantial pensions. Resolving these matters out of court does not mean taking a less rigorous approach. On the contrary, thorough preparation is often what makes successful negotiation possible. A solicitor with experience in complex financial remedy cases will work closely with barristers, accountants, valuers and tax advisers where needed, so that discussions are informed, realistic and focused on achieving a fair settlement.

Privacy as a key consideration

For many clients, privacy is an important factor when deciding how to approach divorce. Court proceedings can feel intrusive, particularly where there are significant assets, business interests or sensitive family matters involved. Out-of-court resolution can offer a more discreet setting in which to negotiate and resolve issues, helping to limit unnecessary exposure and keep personal and financial matters private wherever possible. An experienced family law solicitor can advise on the processes most likely to support confidentiality while still working towards a fair and practical outcome.

Working towards a fair and lasting outcome

A good outcome is not simply one that resolves the immediate dispute. It should also provide clarity, stability and a workable framework for the future. This is particularly important where there are children, ongoing business interests or continuing financial connections between the parties. A family law solicitor will help you keep sight of the bigger picture, balancing legal principles with practical realities.

Resolving divorce matters out of court can offer a more measured, private and effective way to deal with complex financial and family issues. With the right legal advice, it is possible to protect your interests, maintain greater control over the process and work towards a fair settlement that reflects your individual circumstances. If you are considering divorce and want clear advice on the options available to you, our family law team can help. Contact us today to discuss your situation in confidence and explore the most appropriate route forward.

About Elspeth Kinder

Elspeth joined JMW Solicitors in May 2018 as a Partner and Joint Head of the Family Team. Elspeth is recognised as a leader in her field by the legal directories Legal 500 and Chambers and Partners for her experience in all aspects of the law relating to personal relationships:

 

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Why Child-Inclusive Mediation Matters More Than Ever for Separating Parents

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Sarah Hawkins
Sarah Hawkins
CEO
National Family Mediation (NFM)

When parents separate, the focus understandably turns to their children – how they’re coping, what arrangements will work, and how to protect them from unnecessary distress.

But research – and increasingly, national guidance – points to one clear truth: it’s not separation itself that has the greatest impact on children. It’s how that separation is handled.

So important is this issue that the Children’s Commissioner for England, Dame Rachel de Souza, has recently written directly to parents going through divorce – urging them to minimise conflict and prioritise their child’s experience throughout the process.

What the Children’s Commissioner Wants Parents to Understand

In her letter, Dame Rachel highlights that:

  • It is not separation itself, but exposure to conflict, that most affects children’s wellbeing
  • Children are particularly harmed when they feel caught in the middle or pressured to take sides
  • Feeling heard and respected during family changes can make a lasting positive difference

She also makes an important point: while court is necessary in some situations – particularly where safety is a concern – many families can and should consider resolving issues outside of court.

Because when children feel that parents are “fighting for them,” it can unintentionally leave them feeling responsible for the conflict – something that can affect their wellbeing long after the legal process ends.

The Shift Away from Court

This reflects a wider shift across the family justice system.

Courts are increasingly encouraging parents to resolve matters amicably wherever possible – and the reality is that most families do not need to go to court to reach workable arrangements.

That’s where mediation comes in.

Rather than having decisions made by a judge – who may only see a limited snapshot of family life – mediation supports parents to make decisions together, in a calmer and more constructive way.

And for many families, Child-Inclusive Mediation (CIM) is becoming an important part of that process.

What Is Child-Inclusive Mediation?

Child-Inclusive Mediation gives children the opportunity to have a voice – safely and appropriately – within the mediation process.

This doesn’t mean asking children to make decisions or choose between parents.

Instead, it allows them to:

  • Share how arrangements are affecting them day to day
  • Express what’s important to them
  • Feel listened to during a time of significant change

A specially trained mediator speaks with the child privately, and any feedback shared with parents is done carefully, neutrally, and with the child’s consent.

Why Hearing Your Child’s Voice Can Change Everything

Parents naturally want to do what’s best—but without direct insight, it’s easy to misinterpret what a child is experiencing.

Through CIM, children often share things they haven’t felt able to say before – about school, routines, or emotional pressures.

That perspective can be powerful.

“Children don’t need to be put in the middle to be heard. When done properly, Child-Inclusive Mediation gives them a voice without giving them responsibility.” – Sarah Hawkins

It can help parents move away from positions of disagreement and toward solutions that genuinely support their child’s wellbeing.

Keeping Decisions Out of Court—Where Possible

For many families, mediation – and CIM in particular – can help avoid the need for court altogether.

Court proceedings can be:

  • Lengthy and costly
  • Emotionally draining
  • Determined by a judge with limited time and limited insight into your family

While judges play a vital role, they cannot fully understand the day-to-day realities of your child’s life in the way you can.

Mediation creates the space to explore those realities – and to reach agreements that are more personal, practical, and sustainable.

A Common Misunderstanding

As more families are encouraged toward mediation, there is still some confusion about what it involves.

Mediation is not the same as court:

  • It is confidential
  • Mediators do not make decisions or recommendations
  • No reports are written for a judge

This independence is what allows both parents – and children – to speak openly and honestly, without fear of repercussions.

Supporting Families to Choose Mediation

Encouragingly, support is available to help families access mediation early.

The Government’s Family Mediation Voucher Scheme offers up to £500 towards the cost of mediation.

Since its launch, it has helped tens of thousands of families reach agreements around children, finances, and housing – without escalating matters through the courts.

At NFM, we see this as a proven and cost-effective way to support families at a difficult time – reducing conflict and helping parents move forward constructively.

Final Thoughts: Putting Children at the Centre

Separation is a significant moment in a child’s life – but it doesn’t have to be a damaging one.

What matters most is how parents navigate the journey.

Child-Inclusive Mediation supports families to:

  • Reduce conflict
  • Keep children out of the middle – but still heard
  • Make decisions together, rather than having them imposed

As the Children’s Commissioner makes clear, children benefit most when they feel safe, listened to, and protected from adult conflict.

“Most parents don’t want to fight – they want to find a way forward that works for their children. Mediation helps make that possible.” – Sarah Hawkins

If you’re going through separation, it’s worth considering not just what decisions need to be made – but how you can make them in a way that truly supports your child.

About Sarah Hawkins

Sarah Hawkins is the CEO of National Family Mediation (NFM), the largest provider of family mediation services in England and Wales. A passionate advocate for conflict resolution and family wellbeing, Sarah has over 20 years of experience helping families navigate the emotional and legal challenges of separation and divorce.

📍 www.nfm.org.uk | 📧 info@nfm.org.uk | 📱 @FamilyMediationNFM

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Mediation, Arbitration, Collaborative Law, or Court? Choosing the Best Option for You
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Mediation, Arbitration, Collaborative Law, or Court? Choosing the Best Option for You

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Nicki Mitchell
Nicki Mitchell
Partner
Jones Myers

Sponsored post by Jones Myers.

As an experienced Family Law Mediator and Collaborative Family Lawyer with extensive expertise in litigation, I understand the challenges facing separating couples in finding the right way to divorce for their individual circumstances.

The trepidation of a prolonged, costly and stressful court divorce is prompting an increasing number of  couples to seek out routes such as mediation and collaborative family law which avoid going to court. 

Another option is arbitration where separating couples hire a ‘private judge’ to accelerate the outcome of their financial settlements. 

Known as Alternative Dispute Resolution – because they provide alternatives to litigating in court – these three options put children’s best interests first. They also promote a spirit of spirit of collaboration for spouses and parents to achieve the best solutions.  

I hope the insights below will help you to decide which is best for your unique situation.   

What is mediation?

Mediation is a means of resolving family disputes constructively. It enables you to keep  control over  decisions which will  affect the future of you and your family.  In  the court process you hand those decisions over to a judge, who does not know you or your family and knows nothing about what is important to you. Mediation is appropriate for most situations including the most financially complex. 

Who is involved in mediation?

The private and confidential process takes place in a safe, impartial environment and involves a mediator like me, an independent third party who helps you and your ex to reach an agreement over key areas.  At the outset both of you sign an Agreement to Mediate so negotiations can continue on a ‘without prejudice’ basis. 

The number of discussions/sessions varies for each couple depending upon the complexity of the split. As a facilitator, the mediator assists, guides, and helps you to move dialogue forward.  

Many mediators, myself included, are lawyers and can provide extremely useful information about the law to inform your decisions. 

Whether or not they are legally qualified, mediators will recommend that you each  retain  your own solicitor who can provide specific legal advice where required during the process.

What does success in mediation look like?

A successful outcome in mediation can mean many things.  Many couples choose the mediation process to get to an agreement which is formalised in a binding Court Order. 

Often called a Final Order, this is a legal document which officially terminates your marriage without you having to go to court.  However, mediation has many other advantages, including developing a new way of communicating as separated parents. 

Is mediation compulsory?

No. Mediation is a voluntary process. You may have read about a Mediation Information and Assessment Meeting (MIAM) meeting, usually relating to cases involving finances or children, which all divorcing couples are expected to attend before court proceedings are issued. 

These meetings are designed to inform  you both about alternative resolution schemes and to establish if the circumstances are suitable for mediation.

What are the advantages and disadvantages?

Mediation can result in a swifter resolution, reducing legal expenses which mount up in prolonged court cases between warring couples. Highly confidential, it is a more impartial and considered approach and can lessen the emotional impact of separation and divorce on children. 

What happens if mediation fails? 

Due to its voluntary nature, talks can be concluded at any time if headway is not made. However, there are many ways in which the process can be adapted to get over sticky issues and avoid failure.  

There is an increasing trend towards lawyers being present in mediation sessions to provide technical advice and support during the process, in particular where there are complex legal issues.  

Alternatively, disputed legal points can be determined by bringing in a neutral lawyer to give a view or even an arbitrator to give a binding decision on a particular issue.  All of this can be done in the context of mediation.

What is collaborative family practice?

In collaborative family practice separating couples make a commitment to avoid the court route and to work together with specially trained lawyers to make their own decisions about the future. 

Like mediation, it champions a spirit of collaboration and compromise, is entirely confidential – and puts children’s needs at the heart of discussions.   

How does it work – and who is involved?

You and your ex each appoint your own collaboratively trained lawyer and undertake a series of meetings where you all work together to identify, address and resolve financial, parenting and other key issues.   

Collaborative family lawyers  provide support and legal advice throughout the sessions. Accountants, independent financial advisers, pensions advisers and/or childcare specialists can also attend and provide guidance on a neutral basis. You have as many or as few meetings as are necessary to resolve the issues between you.  

At the outset you, your collaborative lawyers and other specialists involved, sign a Participation Agreement that commits all of you to strive to reach resolutions without going to court. 

The agreement  prevents your collaborative lawyers from representing you in court if the collaborative process fails, ensuring everyone is wholly bought into making the process work.    

What are the advantages and disadvantages?

Like mediation, collaborative family  practice puts you and your ex in the driving seat so you can progress the sessions at your own pace, working around your respective work and family commitments. 

Faster, less stressful and more cost effective than going to court, it ensures that everyone involved is committed to achieving a solution. In times where transparency is encouraged in the family courts and journalists can attend hearings, collaborative practice guarantees your family’s privacy.

What happens if a successful outcome is reached? 

Once an agreement is reached, your lawyers will put it into effect, obtaining a formally binding Court Order without you having to go to court. 

What if talks break down?

At any time during the sessions either of you can terminate the process through a Formal Notice of Withdrawal if you feel no headway is being made. Again, as in mediation, failure can be avoided with the right support, including where necessary, an early neutral evaluation or arbitration on disputed legal issues. 

What is the difference between mediation and collaborative family practice?

In mediation, family mediators are neutral – they cannot give advice to either party as their role is  to facilitate discussions.

This differs from collaborative family lawyers who can advise those they represent at the same time as conducting the negotiations. As highlighted above, collaborative lawyers sign up to an agreement not to go to court, which provides a positive investment in the process for the whole team.  

What is arbitration?

Arbitration is a private court hearing where divorcing couples take on a ‘private judge’, officially known as an arbitrator, to achieve a resolution to their financial settlements.  

How does it work?

Like mediation and collaborative family practice, this option, also conducted in a safe and confidential environment, can avoid a prolonged, expensive and, potentially, public court hearing.  

Similar to a judge, the arbitrator hears evidence from both of you, collects relevant facts and bases their decision on the evidence, considering the views of you both.  

The arbitrator then makes an Award over who should have what which is final and binding.

What are the advantages and disadvantages?

Divorcing couples have the same arbitrator through the process, something which  rarely happens at court where different Judges are involved at different stages of the proceedings.

Quicker, confidential and more flexible than a court option, there is a substantial cost saving when delays are avoided. Divorcing couples set and agree their own timetable at the outset. 

If an arbitrator is to be used, this is something which must be agreed. There is no power to compel anyone to arbitrate. Also, arbitrators have no power to secure disclosure from third parties such as accountants or financial advisors or instruct them to present evidence at meetings.      

Can couples involved in a court divorce opt for arbitration?

Yes. Court rules give judges the power to halt court proceedings to give you both the opportunity to resolve the dispute through arbitration or indeed any other form of NCDR.

In what circumstances do couples choose a court divorce?

This largely depends on the advice which couples receive. Whilst most lawyers will explain all the dispute resolution options to clients, some, who may perhaps have less or no experience of NCDR, are more inclined to recommend court applications.  

The court process has its place. A Judge has the power to compel the production of financial information, ultimately by sending someone guilty of non-disclosure to prison. The court can also order third parties who hold information relevant to the case, for example accountants and other advisers, to provide information. In extreme cases a court can make orders without any engagement from one of the parties. 

What does a court process entail?

Before an application can be made to the court for a Financial Order an application must have been made for a divorce or dissolution of a Civil Partnership.  The various steps required to get a divorce can be found on the Government website.

As outlined above, before a court application can be made for a financial or children order, every divorcing couple must also  attend a Mediation Information and Assessment Meeting

A financial application will involve the exchange of full financial disclosure followed by a series of up to three main court hearings.   

What are the pros and cons of a court process?

The role of the court is to encourage parties to make agreed decisions about their finances and children and, in default of agreement, to make binding decisions for them 

Court orders, whether made by agreement or imposed by a Judge, are legally binding and enforceable. 

There is no privacy in a court divorce, where the proceedings are open. Since 2023 journalists have been able to report in family law courts on cases which include the wellbeing and future of children whose parents are divorcing.  

Couples are appointed a judge, who is unknown to them, and who makes vital decisions on key issues about their future.  Continuity is not assured with different judges often involved in the proceedings.  

Court hearings can be costly, stressful and time consuming. They can heighten conflict between the couple and run the risk of a case being adjourned or unfinished due to pressure on court time or a judge becoming unavailable.

The duration of a court divorce can vary significantly from a few months to years if the divorce is contested. 

The breakdown of a marriage invariably leaves those involved emotionally and physically drained and few couples take the decision to separate and divorce lightly

Knowing where to start on this critical path, which will impact on the future of all involved and affect the wellbeing of children involved, can seem overwhelming.  

Whichever route you take when embarking on divorce, it is critical that you secure the best possible legal advice.

I cannot emphasise enough the importance of working with highly experienced family law professionals like Jones Myers who are members of family law group Resolution and have a strong track record in their respective fields.   

Because we understand that every case is different, our family law experts, who are leaders in their field, deliver a bespoke service, outlining options and offering legal and practical advice at every stage to help them make informed decisions.

Read more articles by Nicki Mitchell.

Read more articles by Jones Myers.

About Nicki Mitchell

With over three decades of experience in family law, Nicki specialises in the financial aspects of relationship breakdown – and particularly complex cases involving family businesses, multiple properties, and complicated pension arrangements.

A skilled Mediator, Child Inclusive Mediator and Collaborative Family Lawyer, Nicki champions Alternative Dispute Resolution processes which avoid a lengthy court process and can lead much more quickly and cost effectively to a successful resolution.

Her exceptional track record also includes advising clients on the more traditional methods of resolving issues surrounding family breakdowns. Nicki.mitchell@jonesmyers.co.uk

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