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What are the advantages and disadvantages of mediation during separation or divorce?

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Recently, increasing numbers of separating and divorcing couples are being encouraged to attend mediation instead of hurtling straight towards issuing a court application. Part of the umbrella called Alternative Dispute Resolution, mediation has been used to resolve disputes since ancient times, and became part of the legal process in the UK in the 1990s.

Family mediation is a common and popular option to settle disputes between both married and unmarried couples. With the aid of a trained mediator, the process begins when they contact both parties to talk about the procedure. This is followed by a separate meeting with each party to discuss the case and then the couple is brought together to find solutions to the issues in dispute. As with anything, mediation has its advantages and disadvantages, so it is always sensible to make yourself aware of anything that could affect your experience.

Advantages of family mediation

The following are considered to be advantages of mediation:

  • More control

Compared to being on the treadmill of legal proceedings, parties to mediation can enjoy greater control of the process. For example, they can refuse to accept the arrangement if it does not suit them. A neutral third party mediating a dispute is not allowed to advise or provide a ruling on a case, so the parties are free to accept an agreement, or not. However, this is not the case when you go to court. You are bound by the terms of the order to accept the decision imposed by the judge, whether you like it or not.

  • Fast and efficient

Mediation lets couples negotiate and agree on a settlement within a few days or weeks. On the other hand, it can take many months, and sometimes, years, to resolve disputes through court proceedings.

  • Cost effective

Most couples choose family mediation because it delivers significant costs savings. Both parties can split the cost of the mediation process between them and avoid expenses associated with litigation.

  • More creative

A good mediator will be able to look at the facts of the case before them which enables them to present more creative solutions to the separating or divorcing couple.

  • Flexibility

Mediation can be arranged for a place and time that is convenient for the parties involved in the case. Both parties are likely to feel more relaxed and calmer during mediation because they will not be cross-examined or expected to answer difficult questions before a courtroom full of other people. The flexibility of the mediation process allows each party the space they need to explore alternative options and outcomes, which is rarely possible in court proceedings.

  • Privacy

High-profile clients and celebrities often choose the confidential mediation process to keep the details of their private lives out of the public eye. Every case is treated with the same confidentiality which gives each party confidence in the process.

  • Reduced animosity

Opting for mediation at the outset may reduce the antagonism between the separating couple. Heading straight for the court option can create an adversarial atmosphere that fuels hostility.

  • Less stressful

Most divorcing couples experience a lot of stress and anxiety during the separation. With mediation, the couple is working together to create a divorce settlement that will be acceptable to both of them.

  • Better for children

Focussing on finances and children helps create a more stable environment during the transition between separation and divorce, which is often better for the children.

  • Comprehensive disclosure

Mediators will guide the parties in what documents they are required to gather to ensure full and frank financial disclosure takes place.

Disadvantages of family mediation

The following are disadvantages to the mediation process:

  • Not mandatory

Even if the couple can reach an agreement by virtue of the mediation process, they still have to submit an application to the court to make the agreement legally binding.

  • Unresolved issues

If either party is not willing to cooperate or agree, then the issues between them will remain unresolved. This will leave them with little option but to apply to court to have their dispute settled.

  • Results are not guaranteed

It is not mandatory for the parties to reach an agreement via the mediation process, so neither party can be certain that all their disputes will be resolved. If an agreement cannot be reached and mediation fails, there is no impartial arbiter (such as a judge) empowered with the ability to impose an order.

  • Difficult negotiations

As the couple can negotiate without the mediator being present, it could lead them to believe they can demand more from their ex-partner.

  • Wasted costs of mediation

If mediation is unsuccessful, the costs will be wasted, and both parties would still have to pay for the court process.

  • History of domestic abuse

Mediation may not be the best choice if there is a history of domestic violence or coercive control. In such cases, court proceedings may provide more protection and oversight.

  • Can be ineffective

Mediation can be ineffective if one or both parties are unwilling to compromise, refuse to participate in good faith, or use the process to delay proceedings. A lack of preparation can also hinder its effectiveness.

As we have seen in this article, mediation has its advantages and disadvantages. Despite this, many separating and divorcing couples choose it because of its cost-effectiveness and speed. It is a valuable tool for resolving disputes, particularly when the parties want to maintain a post-divorce relationship. However, your choice should be based on the specific circumstances of your case and dispute, what you want to achieve, and the potential costs involved.

To ensure that mediation is right for you and your family, you should ask yourself the following questions:

  • Is the relationship with your ex reliable and can you communicate?
  • Is there equal bargaining power in the relationship?
  • Was your relationship free of abuse?
  • Can you work together to come to a fair and honest agreement that suits you both?
  • Can you set aside your differences and past experiences and be respectful during mediation?

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