If you are considering separation or divorce or if you still have issues that need to be resolved with a former partner or spouse eg, in relation to children and/or finances, then it can be difficult to work out where to turn for help.
In theory, it is possible for both parties to sit down together around the kitchen table and draw up their own agreements about how to move forwards. Whilst this might work for separating couples who are still able to communicate properly, it is unlikely to be an option if trust or communication has broken down.
However, even those people who feel that this informal approach would work for them, need to be aware that there are often complex legal or practical issues, especially in relation to pensions and the family home, to be considered. They also need to recognise that, if the informal discussions break down, this can often make it even more difficult to reach a lasting agreement than if the parties had sought professional assistance earlier in the discussions.
Regardless of how you reach the conclusion that you would benefit from professional assistance, once you reach this point, you will have a crucial decision to make - namely, whether to seek the advice of a solicitor or whether to seek the assistance of a family mediator.
Whilst many solicitors are themselves qualified family mediators, and whilst solicitors are required to suggest that their clients consider using mediation, it is important to understand that a solicitor plays a very different role to a mediator.
Essentially, a solicitor will work in the interests of one party and communicate with the other party or their solicitor in order to try to reach agreements, but then assist their client to make a court application or take other appropriate steps if an agreement cannot be reached.
In contrast, a mediator will work with both parties, giving them as much information and practical help as possible, in order to try to enable voluntary agreements to be reached between the parties, with it sometimes being necessary or beneficial for these voluntary agreements to be made legally binding via solicitors at the end of the mediation process. One or both parties might also wish to seek legal advice during the mediation process, with this advice then being fed into the mediation process itself. This can an extremely effective way to deal with issues, especially when there are complex legal issues to consider.
Generally, resolving matters via a mediator is likely to cost only a small fraction of the cost of trying to resolve matters via solicitor, with there also being a much higher likelihood of the trust and communication being improved rather than damaged further (which can be especially important in the long-term if there are children to consider).
However, there will be occasions when mediation is not appropriate, such as when there are urgent legal issues that need to be addressed relating to ongoing domestic violence, child safety or the movement of financial assets.
If there are no urgent legal issues to address then, having worked for clients in both capacities, I strongly believe that the most effective approach is to contact a suitably qualified family mediator as early as possible. The mediator will then be able to assess the situation and, if mediation is not appropriate, provide you with details of local solicitors who can help.
If you do decide to consult a solicitor first, please ensure that you discuss the possibility of using family mediation with them. If your solicitor advises you not to try mediation, it would be worth taking a step back and considering whether the reasons given for this are really in your long-term best interests or not before ruling out the use of mediation.
Author: Euan Davidson (a member of the Family Mediators' Association)
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic.
Published on 5th November 2013
(Last updated 28th March 2018)