How can family lawyers assist in mediation proceedings?
Family Procedure Rules (FPR), which govern procedures used in the family court in England and Wales, were updated last year with all parties now needing to consider non-court-dispute resolution (NCDR) to resolve their disputes before making a court application.
NCDR must be considered unless parties fall within one of the exemptions, which have also been limited by the changes.
The rules also mean that throughout the court process the parties should be prepared to consider NCDR. Those involved in the proceedings will need to be prepared to explain to the court why they may not have engaged in some form of NCDR. And the court has the power to order the parties to reconsider the use of mediation as a method to resolve their dispute, and can penalise those who don’t with costs orders.
Laura Podger, a family law specialist at national law firm Clarke Willmott LLP, said: “For many families, the updated rules mean, at least, attempting to reach a resolution via mediation.
“There’s a common misconception that mediation means clients are left on their own to hash things out, but actually lawyers can still advise every step of the way.
“Family lawyers can assist by being involved in mediation from the beginning, either by being present at the mediation sessions or (much better) advising clients in the background between mediation sessions to help ensure the agreement reached is fair. This is not expensive and often helps keep the mediation on track to a successful conclusion.
“If an agreement has been reached at mediation, the document and process are 'without prejudice', meaning that neither person is bound to any proposals until the decision is made, usually after taking legal advice, that they want to be bound by them.
“Lawyers can review the agreement and advise from a legal perspective whether it is likely to be considered a fair settlement or whether someone could be entitled to more.
“Once everyone is content with the agreement we can then draft it into a financial consent order. This is the document which is then sent to court to be made legally binding.”
Here Laura highlights three points to consider in order to go into mediation well informed and able to make the most of what it has to offer:
1. Mediators cannot give you legal advice
You may find yourself reaching an agreement at mediation but not fully understanding your legal rights. So, it is well worth taking advice from a family lawyer to understand the parameters of what you are discussing and likely outcomes. This gives you the best chance to reach an agreement that works for you, and confidence, if needed, that it is fair.
2. The mediator isn’t there to make any decisions or judgements
It is down to those involved in the dispute to find an agreement, but the mediator will help to facilitate this and ensure that the sessions stay on track. They can inform as to the law but not give a clear view as to outcome.
3. An agreement reached at mediation is not legally binding
One party may not adhere to the agreement or aspects of it, but you have no legal options to enforce. The only way to do so is to make the agreement legally binding.
So once an agreement is reached at mediation it should be drafted into a consent order by lawyers (some mediators will do this too) and sent to the family court for approval. Only when it has been approved by a Judge does it become legally binding.
Family Mediation Week takes place on 27-31 January 2025 and is aimed at increasing awareness and understanding of family mediation.
If you are concerned about an agreement you have reached at mediation or are currently going through mediation and wish to seek legal advice visit Family Mediation – Family Dispute Solicitors – Clarke Willmott
