Yes, it’s your choice. Family mediation is entirely voluntary, giving you complete control over the process.

There’s often confusion about Family Court requirements and the alternatives available for resolving family disputes outside of court. While it’s true that you might need to attend mediation before going to court for certain matters, that’s not always the case.

It has been widely publicised that you cannot go to the Family Court unless you have been to mediation. That’s not strictly true. You can ask the Family Court to make an order formalising financial matters or children matters without having tried mediation (or another sort of NCDR). However, you may find the Court will look very closely at whether NCDR was tried before the Court was involved or whether it might still be suitable to try it once the Court has become involved.

There could be risks for people who go to court and don’t at least show they have thought about other ways to sort out the issues affecting their family. The risks could include The Court pausing or rejecting the application or process and even making costs orders for one person to pay another’s legal fees if they have refused NCDR. Therefore it may be worth attempting some NCDR to try and avoid this and save some time and money.

There are also quite a few other types of NCDR that might be a better fit or work alongside mediation. There is definitely no one size fits all to family cases, however similar facts and issues might be and NCDR is the same – there are lots of options that can be considered and tried.

Mediation is beneficial because it is voluntary and confidential. This allows you and the other person to discuss ideas and suggestions that suit your situation. Mediation is also helpful because it is voluntary and private. This means you and the other person can talk about ideas that work for you. What you discuss in mediation cannot be referred to in court or shown to a judge, unless of course you both agree.

So, if not mediation, then what could you try? Here are a few ideas:

Joint settlement meeting

This is also sometimes called a “round table meeting”. You and the other person, along with your lawyers, have a get-together. It usually takes place at a solicitor’s office or a barrister’s chambers. However, you can choose another location if you don’t mind spending extra money for “neutral ground.”

The discussions that take place on this occasion are usually referred to as “without prejudice” . This means that, as with mediation, you can bat ideas for settling the differences back and forth without anyone being able to tell the Court and rely on them. If you reach an agreement, then you can ask the Court to approve it.

If needs be, there’s no reason you couldn’t also have other experts involved here such as pension advisors, mortgage advisers and so on to help too. Having access to immediate advice and answers can be so helpful in resolving a matter on the spot.

Our family team lawyers can support and advise you through a joint settlement meeting.

Early neutral evaluation

In an early neutral evaluation you jointly ask someone completely neutral (most often an experienced solicitor or barrister) to look at the information and give you an early indication of where they anticipate the case could end up and what sort of order(s) the Court might make. This is still confidential and is not legally binding. This can be helpful particularly when there are perhaps some issues that might not end up needing any formal decision-making by a Court. We can help and advise you about an early neutral evaluation.

Collaborative law

Specifically trained lawyers offer this service. It involves two people agreeing to use the collaborative process to resolve their differences, reach an agreement (if possible) and avoid the Court process. Both lawyers also need to agree to this approach. It allows everyone to get together around a table (whether a real one or a metaphorical one) and try to sort out what needs sorting out by agreement. A benefit of collaborative law is that you can bring in other experts such as financial advisors to help you make arrangements.  However, it is worth noting that if communication at this point all breaks down and you really can’t reach an agreement then both lawyers have to step down (because they’ve been part of the confidential discussions and cannot then represent you in court). Fiona Apthorpe is a trained collaborative lawyer should you wish to explore this option.

Family arbitration

Family arbitration is different from the other options, in that the outcome is binding. This is because if you go into arbitration, part of the process is agreeing you will both be bound by the decision (known as the “award”) the arbitrator makes and then ask the Court to approve that award as a final order.

The simplest way to describe arbitration is probably “like a private court system”.  You both agree who you want as the arbitrator, when you will meet them and where it will take place. This is the significant difference to the Court structure where you aren’t guaranteed a specific judge, court or date in most cases.

Arbitration is a useful way to get to the end of a case on financial matters and children arrangements in many cases. You also have the benefit of knowing the Arbitrator is experienced in the area of law being dealt with (whether finances or children) and will be able to dedicate their full attention to your case rather than the judiciary who frequently have heavy caseloads.

Historically, people have been put off arbitration thinking it is expensive. However, in the long term, this is not necessarily true, as it can be a much quicker process.  Sometimes the delay is expensive in itself and the Family Court is struggling so delays are to be expected. Fiona Apthorpe is an experienced arbitrator and able to accept instructions across England and Wales.

Private Financial Dispute Resolution hearings (“pFDR”) in Divorce and Dissolution

One of the types of hearing you may encounter during the divorce process, especially during financial discussions is a “dispute resolution hearing” which involves the parties negotiating around finances but with input from the judge and their views too.

To move things along in a crowded court system, rather than wait several months, you can both elect to have a private version of the hearing – with the “judge” (an experienced lawyer, part-time judge, retired judge) of your choosing on a date and at a venue you both agree upon. This can help move a case to a conclusion much faster and then more cost-effectively than having to wait for several months for the same sort of input from a judge.

For more information on private financial dispute resolution hearings, read our article Exploring the benefits of Private FDR in divorce settlements.

Still unsure about mediation?

That’s okay! We can help you explore other options to find the one that best fits your situation.

Geldards Family Team can advise you on all options including mediation and alternatives. For advice on mediation, please contact us and ask for Fiona Apthorpe (accredited mediator), Claire Dean (accredited mediator) or Belinda Moseley (training towards accreditation mediator). For advice on all other options, contact the Geldards Family Team