The relationship between mediation and court - Some usual questions. - Marcia Mediation

Property division in broken couples can be emotionally and monetarily draining. Finding a fair divide can be difficult, whether the assets are business assets, investments, or a shared house. Going to court can frequently be more expensive, more conf...

  1. Do I have to go to mediation?

No. Mediation is completely voluntary. You can decide not to agree to mediate or, once you have started the process, can stop at any time   if you feel it is not working.

  1. What is compulsory about mediation.

The only compulsory bit is that before you issue any application in court you must attend a MIAM (Mediation Information and Assessment Meeting) with a mediator in order to consider whether mediation may be a suitable option.

  1. Can I force my ex to disclose his assets in mediation?

You cannot force him but if he fails to provide full disclosure you may opt to stop mediation and issue a court application. The court process requires each party to provide disclosure by way of form E which is completely compulsory, with sanctions for failure or proven omissions. It is common for parties to return to mediation after exchange of form Es.

  1. Will it go against me if I refuse mediation.

No. However your solicitor may advise you on whether you can protect your position on costs if your ex refuses to negotiate or to accept a reasonable offer.

  1. If I issue court proceedings will my case go to a full trial?

Not necessarily. Your solicitors may try to negotiate a settlement before your case comes to a final hearing. Further, the door to mediation remains firmly open. You may come back to mediation any time after the issue of proceedings.

  1. Can the mediator advise me what to accept?

No. You will obtain advice from what is a suitable agreement from your own solicitor who is there to fight your corner. You may also seek financial advice from an independent mortgage broker or financial advisor to check whether any proposed agreement will work for you financially. That said, many mediators are former lawyers or have years of experience in the practice of family law. Whilst they cannot advise you, they can certainly use their legal knowledge to guide you to a compromise that might work for you both,

  1. Is mediation enforceable?

No but your mediator will prepare a memorandum of understanding or summary of proposals from which your solicitor will draw up a consent order which will be filed at court and, when approved by the judge, become enforceable.

  1. What are the advantages of mediation?

Mediation is cheaper, less stressful, quicker and allows separating couples to make their own decisions on what arrangements they make for themselves and their children moving forward. This can help them on their journey from being a couple to separated independent co=parents.

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