Settling family disputes: Solicitor supported mediation

With the ongoing delays in the Family Court and the high costs associated with contested proceedings, families are increasingly exploring alternative methods for resolving disputes related to finances and children following a separation or divorce.

April 2024 saw changes to the Family Procedure Rules (which govern certain family law court proceedings). Couples are now strongly encouraged to consider non-court dispute resolution (NCDR) rather than start a court process. The changes require separating couples to explain to the court what steps they have taken to resolve their dispute before making a formal application. Potential cost sanctions can also be imposed on those who demonstrably fail to engage in NCDR. 

How mediation can help resolve family disputes

Mediation is one of several NCDR options available to couples and families involved in relationship breakdown and who need help resolving the financial and/or child arrangements, including:

• Solicitor negotiation 
• Collaborative law
• Arbitration
• Evaluation by a neutral third party
• Private judging
• Mediation

Before embarking on any of these options, it is strongly recommended that you obtain independent legal advice from a specialist family lawyer to discuss the issues and consider the best course of action based on your family’s circumstances and the matters that need to be resolved.

This article considers how a specialist family law solicitor can assist specifically with mediation. We highlight the benefits of receiving legal support if you are thinking or already engaged in mediation following a relationship breakdown.

What types of family disputes can mediation be used for?

Typically, mediation is used by married and unmarried couples whose relationship has broken down and who are embarking on a separation or divorce.

Mediation can help couples resolve financial issues, such as how to deal with any property, savings, investments, businesses, and pensions, for example, as well as addressing any ongoing need for support, such as maintenance for themselves or any children of the family.

Mediation can also be used to help families sort out the arrangements for their children, in terms of deciding where they will live, how much time they will spend with both parents (as well as other extended family members such as grandparents), child maintenance, and any specific issue which may arise in relation to the child’s upbringing - a change of school, a medical issue, or a relocation, for example.

Some specially trained mediators can also offer child-inclusive mediation so that the child/children of the family are safely involved in the mediation process and can have their voice heard.

What are the benefits of solicitors being involved in mediation?

Although family mediation is a process which involves a couple meeting together with a professionally trained, neutral and independent mediator whose role it is to help them work out the issues arising from their relationship breakdown, this does not mean the parties should engage in the process without first seeking legal advice and support from a family lawyer.

Mediation meetings are confidential and held between the couple and the mediator only. This means the solicitor will not be present during the mediation sessions. However, whilst the family lawyer will not be present during the mediation, they can offer expert support and legal advice before and after the meetings. It is recommended that couples engaged in or considering mediation should obtain such legal advice.

Although it is not uncommon for family mediators to also be qualified family law solicitors, when they are instructed as mediators, they cannot give legal advice to either party during or alongside the mediation process. Instead, the mediator may only provide information to both parties to assist them in working towards their own decisions.

Therefore, it is important for separating couples to take independent legal advice alongside the mediation process for the following beneficial reasons:

• To consider the legal issues arising from their relationship breakdown
• To understand the financial claims that either party may have arising from the relationship
• To understand the law surrounding children matters and how these issues may otherwise be resolved and
• To consider what the parameters of a fair outcome may look like and the legal implications of any proposed settlement.

In our experience, couples who receive independent legal advice alongside the mediation process are more likely to reach a fair and sensible agreement. This is because they have a better understanding of the legal implications arising from the issues which need to be resolved. 

In turn, this means they are more likely to reach a workable, achievable agreement that can then be recorded as a legally binding and enforceable agreed court order if that is what both parties want to be put in place.

How can solicitors help couples in mediation?

Solicitors can add clarity and help couples with mediation in many ways, including but not limited to the following examples:

• By providing legal advice before a party embarks on mediation so they have a better understanding of the legal issues arising from their separation
• By explaining the different non-court dispute resolution options available to resolve the issues, including the pros and cons of each method, to help them decide which option/s would be best for the family
• By recommending suitable family law mediators who would be best placed to help the couple
• By making the mediation referral and putting the parties in contact with the mediator to start the process
• To consider and advise on sticking points or complex issues which require clarity from a legal perspective before settlement proposals can be made or considered in mediation and
• To work with and refer the parties to other professionals who may need to be involved in helping them reach an agreement, such as an accountant for tax advice, a surveyor for property valuations, an independent financial adviser, or a pension expert.

What should you do if matters are agreed in mediation?

One of the most important ways a solicitor can help in mediation is in relation to the steps needed if an agreement is reached.  

If the parties successfully reach an agreement in mediation, the mediator will prepare a written summary of the proposed settlement terms, together with a summary of any financial disclosure exchanged between the couple. The written summary is often referred to as a “memorandum of understanding” and will be prepared on a “without prejudice” basis. 

An agreement reached in mediation is not legally binding, which means both parties can - and should - take legal advice from a solicitor specialising in family law after the mediation has concluded. If, after taking legal advice, both parties are happy to proceed with the agreed terms, the solicitor will then convert the agreement into a legally binding and enforceable court order.

How Birkett Long supports clients in the mediation process

Although Birkett Long does not directly offer mediation services, we have links with many family mediators and will be happy to signpost you in the right direction. 

We can also provide the specialist legal advice you need alongside the mediation process.

If an agreement is reached in mediation, we can advise and help draw up the necessary documents to formally record it. This may include creating a legally binding Consent Order or a Separation Agreement, for example.  

We can also assist with any implementation matters arising from the agreement, such as dealing with the sale or transfer of a property or implementing a pension sharing order. 

If you want to know more about mediation and how we can help, our family solicitors offer a free initial 15-minute telephone appointment to discuss your needs. The author of this article, Shelley Cumbers, who is an associate solicitor in the team, can be contacted on 0330 818 3243 or via email at [email protected]

This article was originally posted on 14 March 2024 and updated on 17 January 2025.