What happens if mediation does not work?
As a family mediator, I always felt a degree of personal responsibility if I was unable to help clients reach an agreement on their parenting or financial issues.
The worst part for me was sending clients away, knowing they were about to spend many thousands of pounds on a court process that could have been avoided and that the process would drag on for many more months, even years, before they could get a decision on their dispute.
I knew there must be a better way for clients if they cannot agree, so Mediate UK set about trying to come up with some more options. With the help of our experienced solicitors and a highly respected barrister chambers, we set up our independent barrister review packages.
Independent Barrister Review
The barrister reviews can be used for either parenting or financial disputes and we instruct the barrister with the most experience in that area. Mediate UK are one of a handful of small businesses that hold a license for direct bar instruction from the Bar Council. This allows us to instruct an independent barrister to carry out work on behalf of our clients.
The family law barrister writes a report on what the law is, how it applies to your case and, if you went to court, what a likely outcome would be. The report is not legally binding and can be further mediated between you both once you receive it. However, it gives you as close to an answer on what would happen at court as you can get, without spending tens of thousands of pounds between you to find out.
Crucially, it comes from a neutral viewpoint – whilst individual legal advice will always be targeted at what is in your own best interest and therefore is likely to be different from the other parties’ legal advice.
Clearly there are many benefits to you both, but it also assists the mediator in helping you reach an agreement. Rather than sending you away with no agreement, your mediator can meet with you again and help you reach an agreement based on the independent barrister report. But this time, you all have a realistic middle ground agreement to base your discussions on.
We have been providing these barrister reviews for over four years and the feedback has been really positive. Yes, sometimes the client disagree with the report, but it is difficult to argue against it when the barrister explains the law and reasoning behind it. It certainly helps you to focus on how family law is applied to your case. And that in itself can help to break the deadlock.
What does a barrister review cover?
The mediator will have worked with you both to explain the background to the current situation. They will then list all the issues that are still outstanding. You may have specific questions you want the barrister to answer, such as:
“would the court award me spousal maintenance”
“how should the equity in the house be divided between us”
“should my recent inheritance be taken into account on the division of assets?”
“would a court order that the house must be sold?”
The barrister will have had access to your full financial disclosure. They may also ask for details of suitable properties in the area you hope to purchase. This will then allow them to compile their report.
You also have an opportunity to state what you would like to happen and any other information you think may be relevant for the barrister to know such as your earning potential or any health issues
To maintain their neutrality, you will not be able to speak with the barrister or amend the report once it has been agreed and submitted (unless there is a substantial change to the report).
The barrister report you receive will contain a thorough explanation and reasoning of their answers to each of your questions and the issues that need to be resolved. It explains which area of family law it relates to and why they believe a court would make a judgement on each topic.
It is a testament to the quality of the reviews that only one of the cases we have supplied barrister reviews for has gone on to court – which was a particularly difficult case involving a severely handicapped child. So we know they work at helping to keep clients away from the stress, costs and time involved in litigation.
If you don’t agree with the contents of the barrister report and believe that a court would award something else in your favour then you can always submit an application to go to court.
Go to Court
Of course in some cases the only alternative to mediation is to go to court, especially if one party is being particularly unreasonable. In such cases the mediator can sign a Form A for financial issues or C100 form for parenting arrangements. This will show that mediation has started but broken down.
It is important to remember that as all mediation is confidential and without prejudice, so what has been discussed in mediation will not be used in court. Mediation can help narrow the scope of the issues to be resolved, making the court process more focused on those issues that cannot be agreed on.
Arbitration is where a senior barrister or judge will make a decision on you case that is legally binding on you both. You both need to agree to go to arbitration. Popular in the USA, it is becoming far more common in the UK and can be used for financial as well as parenting matters.
It is a quicker and substantially less costly method of getting a legally binding order on your dispute. We recommend at least discussing arbitration as an option with the party you are in dispute with as it will leave more money in the family pot for you all. With the courts currently managing a huge backlog of cases, made worse by the Covid-19 outbreak, arbitration will also be a far quicker method of getting a legally binding decision on your case.
Doing nothing is sometimes an option. If you cannot agree to change a parenting arrangement, vary an existing maintenance order or agree how to divide up any assets between you – you can simply maintain the status quo. Whilst doing nothing is not always an option, especially on a divorce, actually giving time to allow matters to settle down somewhat, can help with reaching a settlement at a later time. You can return to mediation at any point and in many cases pick up where you left off.
Mediate UK follow a method of mediation called progressive mediation. This focuses on helping clients move forwards, concentrate on getting an agreement and giving you options to proceed. This, along with our barrister reviews, means that 90% of our clients go on to reach an agreement if they come to joint mediation through us. The national average is just 74%.
Barrister reviews are available at a fixed fee of £499pp and can be requested if mediation breaks down or even at the start of the process if you both agree.
Call us on 0330 999 0959 or contact us to find out more.