Can Mediation Agreements be enforced by the court?
When it comes to resolving family disputes, mediation has become an increasingly popular option. Many individuals turn to family mediation as a means of finding common ground and working through issues such as child arrangements, and financial disputes that develop as part of a divorce or separation. However, a common question often arises: Can mediation agreements be enforced by the court?
In this blog we take a closer look at the dynamics of mediation agreements, their legal status and the steps needed to make them legally binding.
Understanding the Value of Family Mediation
Think of family mediation like a second step in solving problems related to your separation. The first step would usually be to try to work things out between yourselves. If this fails and if you try family mediation early on, it’s a good way to see if you can reach agreement without going to court. This can save you time, money, and a lot of emotional stress. 73% of people nationally reach an agreement through mediation and 90% of Mediate UK clients are able to do so.
Family mediation is a process in which a trained, impartial mediator helps disputing parties communicate and negotiate with each other to reach mutually acceptable agreements.
It’s important to note that family mediation, in and of itself, is not legally binding. It does not have the same legal weight as a court order or a legally binding contract. However, this doesn’t diminish its significance. This platform allows individuals to openly address their concerns, preferences, and potential solutions in a controlled and respectful environment.
If we reach an agreement in Mediation, can it be enforced by the court?
The short answer is no, a mediation agreement cannot be enforced in court as is. However, it’s important to recognise the significance of a mediated agreement.
A court will expect you to have at least considered family mediation before they will resolve a dispute. If you are able to reach an agreement through mediation and given the checks made in the mediation process, a court is more likely to agree a mediated agreement, ahead of one you have devised yourselves – especially if you are diverting from a standard 50/50 split or agreeing anything that could be considered unusual for your situation.
What paperwork do I get from mediation?
Your agreement will usually be written up by your mediator. How this is done could vary from mediation service to mediation service. At Mediate UK you would get the following documents:
Open Financial Statement (OFS)
The OFS lays out your financial disclosure. It can be produced in court. It reflects all the financial information disclosed during mediation. It provides a comprehensive and transparent overview of each party’s financial situation, including assets, debts, income, and expenses. This document is a snapshot of the financial landscape that helps both parties and mediators make informed decisions during the mediation process. It ensures that all financial aspects are openly and honestly discussed, laying the foundation for a fair resolution.
Memorandum of Understanding (MOU)
The MOU lays out what you have agreed and how your finances are to be divided up. It reflects the narrative behind the settlement reached during mediation. It sums up the main points of what both parties agree on, outlining the decisions and compromises made to resolve your issues. It serves as a written record of your intentions and serves as a blueprint for how you plan to move forward. Essentially, the MOU tells the story of how you have both arrived at a mutual understanding and commitment and why you are doing what you have agreed.
A parenting plan outlines your joint decisions on how you will co-parent your children when living separately. It covers matters like where the children will stay, when they’ll see each parent, shared responsibilities and other important details.
How can I make my Agreement Legally Binding?
How you make a mediated agreement legally binding will depend on the document you have:
Financial Agreement (MOU)
An MOU will be drafted into a financial consent order as part of your divorce. This will usually be done by a solicitor. You do not need to attend court and it will be made legally binding as long as the judge agrees that the agreement is fair.
A Parenting Plan can be made into a legally binding child arrangements order by a court. This does not have to be done as part of a divorce, but you will need to attend court in person for this. A judge will only make it legally binding if they consider it to be in the child’s best interest.
A child arrangements order can be obtained in one of two ways:
- By consent – If both parents agree on their arrangement for the children, the court can endorse it, provided they believe it’s best for the children. You will both need to go to court and explain why you need a legally binding order. A consent order will be drafted, and it is better if this is done by a solicitor.
- Secondly, in cases where parents cannot come to an agreement, the court can intervene and issue an order, again, if they determine it to be in the children’s best interest.
Separation Agreement or Deed of Separation
If you have finances together and are not married, or are married and do not wish to get divorced just yet, you can have your agreement made into a separation agreement. These fall under a different law to family law and can be treated as a contract. They do not hold the same legal weight as a financial consent order on divorce. Take a look here to find out more about separation agreements.
Read more about how we can make your agreement legally binding through one of our FIXED FEE LEGAL PACKAGES.
Whilst mediation agreements are not legally binding on their own and cannot be enforced by a court – they are a valuable and important step in the process. It shows the court that you have reached an agreement through mediation – their preferred method – and allows the court to make your financial agreement legally binding without needing to attend court yourselves.
For parenting arrangements, they show the plan that you have agreed and can be produced in court by consent, to show what has been happening. Unless in extreme circumstances or child safety, a court would usually prefer you worked with a parenting plan made between yourselves, rather than a child arrangement order made by the court.