Do I need a lawyer if I go to mediation to sort out finances?
On the 29th of April an important change was made to the rules governing the family courts.
The change is intended to encourage parties to family court proceedings to use ‘Non-Court Dispute Resolution’.
‘Non-Court Dispute Resolution’ means a method of resolving a dispute other than through the court process, such as mediation.
The rules allow the court to require the parties to complete a form setting out their views on using non-court dispute resolution as a means of resolving the matters raised in the proceedings.
And the court can adjourn the proceedings to enable non-court dispute resolution to take place, even if the parties do not agree to the adjournment.
And in relation to financial remedy proceedings the court may make an order for costs against one of the parties if that party failed without good reason to attend a Mediation Information and Assessment Meeting (‘MIAM’) or non-court dispute resolution.
Clearly, the courts are going to be expecting more financial remedy cases to be resolved out of court, in particular through mediation.
But that raises the question: if you go to mediation to sort out finances on divorce, do you need a lawyer?
The answer is that it would most certainly be advisable to instruct a lawyer, even if you hope to resolve your dispute via mediation. There are three primary reasons for this:
Firstly, you will need advice, at all stages of the mediation process. It is important to understand that the mediator cannot advise the parties, who will need to seek their own legal advice. And anyone going into mediation will need advice upon what is a reasonable settlement, before they agree to anything.
Secondly, if the mediation is successful and results in an agreed financial settlement then that settlement will need to be incorporated into a court order (known as a ‘consent order’), to ensure that the settlement is final and enforceable. A consent order is a complex legal document, which should always be drafted and approved by lawyers.
Thirdly, there is of course no guarantee that mediation will be successful, in which case the matter will have to go to court. Obviously, it would be advisable to have lawyers ready to deal with court proceedings in the event that no agreement is reached in mediation.
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