Is a mediation agreement legally binding?
The mediation agreement itself is not legally binding. If you both agree you can have the agreements you made into a legally binding order.
A question that is sometimes asked is “what is the point of family mediation if the outcome is not legally binding?”
All family mediation in the UK is without prejudice. This mean you can discuss matters freely, make offers and explore options, without being legally bound to them, should mediation break down and you end up going to court. When you reach an agreement it can be recorded into a memorandum of understanding. This records your agreement into a document, that you can take your own solicitors if you wish, or instruct a solicitor to check the agreement reached for a fixed fee memorandum advice package.
Mediate UK can make any agreement reached through our service, or any other mediation service into a legally binding one.
It is only the family court that can make an agreement reached between couples legally binding. The exception to the rule is a separation deed, which invites the court to make your financial agreement binding when you later get a divorce. These are drafted by a solicitor and you will both sign the agreement. Confused? We are not surprised. Family law is notoriously complicated and has many grey areas. This is because each family and situation are different and the law wants to be flexible to reflect that.
So what can you do to make your mediation agreement legally binding? Let’s have a look at the options below:
Child Arrangements Order
A child arrangements order is the only order that can make your parenting plan legally binding. The order can cover where your children will stay and when, what will happen during holidays, Christmas and other special occasions. It can also be used for specific issues such as where the children will go to school.
Financial arrangements for the children are covered under different areas of law. To apply for a child arrangements order, you need to complete a C100 form and will usually need to attend a MIAM, unless one of the mediation exemptions applies to your case.
If you reach an agreement through mediation, you will have a parenting plan drafted.
Most parents are able to reach an agreement between them without recourse to the courts. A parenting plan can be really helpful to lay out how you will work together to raise your children. The parenting plan can be produced at court if matters deteriorate.
A court will only agree to make your child arrangements legally binding, if they agree it would be in the best interests of the children to do so. Remember the best parenting plans are flexible and will help you adapt as your children grow older and their needs and wants change.
Child arrangements orders tend to be fixed, so that they are able to be enforced. This means parents end up going to mediation and then back to court each time they want the plan amended. For some families however, they are invaluable in ensuring the agreement reached is stuck to.
You can choose to have the parenting plan made into a legally binding child arrangements order, by consent. Mediate UK offer this service at a fixed fee.
The consent order will make your financial agreement legally binding. It can also provide a clean break when you have no ongoing payments between you.
Unlike a child arrangements order, a financial consent order is something that you should definitely consider with every divorce. It provides certainty on the finances and makes sure you are not left open to a future claim from your ex-spouse, even after your divorce has been finalised.
If you are making any sort of pensions sharing agreement, then you will need a consent order in order for the pension companies to make a transfer. They are also essential if you are wanting a clean break agreement, if you agree any ongoing payments between you and if you are selling a property at a later date after the divorce.
Mediate UK offer a fixed fee mediation and a solicitor-drafted consent order package.
Deed of Separation / Separation Agreement
A deed of separation can be drafted by a solicitor when you are married but do not want to start the divorce now. It invites the court to agree your financial arrangements when you later get a divorce. The court will accept this if you have both had independent legal advice, had access to an open financial disclosure and was not signed under duress.
A separation agreement can also be used for couples who are not married but have joint assets they are dividing up.
You do not need to go to court for the separation agreement, thus they are usually a lot quicker than a financial consent order. But remember, if you are still married, they do not provide as much security as a clean break consent order.
Mediate UK offer a fixed fee mediation and solicitor drafted separation agreement package.
Can I change my mind after signing a mediation agreement?
Yes and in many cases you do not need to sign the mediation agreement as they are not legally binding. Many people like to take their mediation agreement to a solicitor for a memorandum sense check. This can give you peace of mind that what you have agreed is fair and the solicitor may suggest things that you had not thought off, such as the capital gains implications of your agreement
But once you have a final mediation agreement, you should stick to the agreement. This helps to build up the goodwill between you. In some cases your agreement can be later produced at court and the judge may want to know why you wish to alter the arrangement.
Family Mediation is one of the methods used to help you reach an agreement on the parenting and/or financial arrangements. Once agreement is reached you can agree to have your arrangements made legally binding by consent.
This method is far less expensive than using a solicitor to represent you at court and means you are in control of the outcome. That outcome can then be made legally binding. Mediate UK are the only family mediation service that offers this for a fixed fee, helping you budget and giving you certainty on the agreement we have helped you to reach.
We are also experts in helping people achieve a fair agreement on their parenting, property and financial arrangements.
Call us on 0330 999 0959 or email firstname.lastname@example.org.
We can help you find your future.