Why Mediation Is on the Rise
The use of mediation by separating couples as an alternative to court proceedings has steadily been on the rise in recent years. There is likely to be a number of reasons for this but most notably: (i) the introduction of the no fault divorce which reduced the level of conflict at the outset of a number of cases; (ii) significant delays in the court system, particularly since the pandemic; and (iii) the attraction of having a confidential and faster route to resolution when the family courts are opening up to reporters and taking months to progress cases.
This increased appetite for mediation from clients is mirrored by the court itself which is struggling under the weight of a huge backlog of cases. This is reflected in the April 2024 changes to the Family Procedure Rules which now require practitioners to actively consider non-court dispute resolution before every court hearing. Judges are going as far as to send parties away from hearings to “reconsider” other non-court alternatives and in some cases, requiring parties to file statements justifying why they won’t engage in mediation or arbitration.
In high conflict and complicated cases it is easy to understand why clients might prefer to have the safety of legal representation and accounting / tax support, particularly where resources permit. However, mediation comes in many forms and it is possible to enjoy the benefits of mediation whilst retaining the safety net of lawyers and other advisors whether in the background or even physically present in the room.
Why Mediation Works for High-Net-Worth Families
Regardless of the sums at stake, for the majority of clients the ideal would be to achieve a Chris and Gwyneth style “conscious uncoupling” with the least acrimony possible, especially in relation to child arrangements. Mediation is a great way to achieve that aim because it is:
- Confidential: Unlike court proceedings, mediation is entirely private. The disclosure provided and discussions had are kept completely confidential – there is no danger of the press, accredited or otherwise, getting hold of sensitive financial or personal details.
- A bespoke process: The entire process is agreed between the couple from the identity of the mediator to the form the mediation takes i.e. Is it going to be online or in person? Will it be face to face or shuttle mediation where the mediator “shuttles” between the clients without the clients having to eyeball each other? Will solicitors advise in the background, be present throughout or simply be brought in at the end to draft a consent order? The mediation process gives clients huge flexibility and control, and it enables clients to sort things out in a way that works for them.
- Tailor made outcomes: Not only is the process specifically curated, the outcomes are tailored to the individual needs and requirements of the specific case in question. No two families are the same and despite the discretion afforded to them, judges are constrained in the orders they are allowed to make. Mediation is a great way to avoid having a one-size-fits all outcome imposed upon you. Because the discussions had in mediation are “without prejudice” i.e. they cannot be disclosed in any later court proceedings, clients can discuss and road test proposals without the worry that a concession will be used against them in the future if agreement is not reached.
- Cost and time efficient: mediation has the quantifiable advantage that it typically costs a fraction of the costs of litigation and concludes within weeks or months rather than years.
The result of the above, and perhaps the key advantage of mediation, is that it puts clients in the best possible position to move forward. Mediation encourages constructive dialogue; the outcome is one that is chosen and agreed upon by the clients because it works for them rather than being imposed upon them. As a result, it is more likely to work and be complied with. In cases where there are young children and co-parenting has to continue for many years to come, this can be invaluable.
Conclusion
Mediation is not suitable in all cases, but it is also not an opportunity for one party to strong-arm the other into a deal without the benefit of legal advice, as it is often perceived to be. It can be an enormously helpful tool to break through impasses and reduce conflict, either on specific discrete points within a case or to settle a case in its entirety, whether in relation to children, finances or both.
Our Family Law Mediation Team
If you would like more information on family mediation, arbitration or the court process upon separation, please do get in touch.
For further information contact our Family Department or, alternatively, telephone on 020 7465 4390.
