Family Disputes: When the other side is unprepared

You have taken the initial step to seek legal advice from a solicitor in relation to a family dispute, but what happens next? The following steps will depend on your circumstances. At Birkett Long, we discuss the various options available to our clients, including any Alternative Dispute Resolution (ADR) schemes. Mediation is a well-known form of ADR, and you may have encountered it during your initial search on the web.

Seeking legal advice

Mediation is often useful to help you discuss and negotiate the dispute in a neutral setting with the assistance of a mediator. The mediator’s role is to remain independent and help with negotiating a settlement or, at the very least, narrow the issues in dispute. 

The courts favour mediation being attempted before proceedings are issued as it can often save the parties costs in the long run. That said, there are exceptions to engaging in mediation, as it may not be suitable for your circumstances. If you are unsure whether mediation applies to you, it is advisable to speak to a solicitor first.

Challenges in mediation

Mediation can be used to deal with financial matters and disputes arising in relation to children matters. Whilst it is normally more cost-effective than going to court straightaway, there are some drawbacks. We find that it is not uncommon for one party to be unrepresented. This poses difficulties because a mediator cannot give legal advice, so the unrepresented party is not prepared for mediation. 

For example, a mediator may be instructed to assist with financial matters arising from a divorce/dissolution. During that process, the mediator will ask for financial disclosure from both sides. Financial disclosure involves providing full details of your finances and circumstances, so the mediator is able to help you identify what assets are relevant and what each person’s needs are. 

The role of solicitors in mediation

This, in turn, promotes negotiations to take place in the hope that a settlement can be reached. Unfortunately, if one party is unprepared and attends mediation with incomplete paperwork, very little progress can be made at mediation. 

This can be extremely frustrating for the person who has come prepared hoping to commence negotiations at the scheduled meeting. We try to avoid this situation by remaining in the background whilst our client attempts mediation. We write to the other side, setting out what needs to be done before the next session to mitigate the risk of the party attending mediation unprepared.

Attending mediation unprepared not only incurs further costs but also breaks down the trust that has been placed into the process. This is not helpful to anyone and often leads to court proceedings being issued as a result.

We continue to assist our clients whilst they are in mediation. This is an important part of negotiations as once financial disclosure has taken place, any agreement reached between our clients and their ex-partners (whether it is on finances or in relation to children matters) still requires to be formally recorded.

The importance of legal advice in mediation

Legal advice from a solicitor is an essential part of the process. Not only because it ensures that you are protecting your position but also to make sure that any agreement reached at mediation is legally enforceable. Unfortunately, there have been occasions where parties have attended mediation without any legal advice and then found themselves having to return to mediation because the agreement reached between them is unlikely to be upheld by the courts. This is not helpful to anyone and only adds to the frustration. 

By seeking advice throughout the process, our clients ensure that the agreement negotiated at mediation can be enforceable. Mediation is a confidential process, so without a solicitor’s involvement, you are likely to find yourself in a situation where there remain points of dispute between you and your ex-partner.

 A judge will not ordinarily be exposed to discussions at mediation, but by confirming the agreement through solicitors, we can ensure that if a judge’s input is required, your case can be put forward effectively. 

On some occasions, we have found that our clients prefer hybrid mediation, which is when a solicitor is also present for the sessions. This is particularly beneficial if you feel your ex-partner is unlikely to be reasonable at mediation or if you are anxious yourself.

Post mediation negotiations 

It is also worth noting that if an agreement is not reached at mediation, we can continue negotiations outside of mediation. It is not uncommon for us to take over from the headway made at mediation.

At Birkett Long, we consider everything that is available to our clients and cater for their specific needs. Not everyone requires assistance from the outset, but having legal advice on your position from the outset can only be in your best interest.

For more information about how we can help, our family solicitors all offer a free initial 15-minute telephone appointment to discuss your needs. I can be contacted on 01245 453846 or via email at [email protected]