November 15, 2013

Routes to divorce: confrontational litigation or measured mediation?

In the second of our ‘back to basics’ series we examine mediation versus litigation – two extreme options for separating couples.

As family lawyers, we understand only too well that these terms may be unfamiliar and daunting for those coping for the first time with the physical and emotional impact of splitting up.

Confusion between litigation and mediation remains rife – as reinforced in a national survey, which revealed that almost half of the people questioned thought that obtaining a divorce settlement entailed going to court.

Here we outline the key features of each of these very different routes to divorce:

Litigation: five key facts

  1. Litigation can be confrontational, costly and prolonged. Some people believe, wrongly, that they may secure a better deal in financial and child contact matters if they go to a family court.
  2. Going to court means that your case will be heard in front of a judge: you will usually be represented by your solicitor and may also have a barrister for final hearings.
  3. The judge, someone who doesn’t know either you or your spouse, will make a decision about how your financial assets will be divided and on arrangements for contact with your children.  The judge’s decision is legally binding.
  4. The cost of going to court can be substantial. You need to consider how you will fund this in the absence of Legal Aid and whether the amount spent on litigation will be worth it – or if it could be better spent in other ways.
  5. As well as the financial cost of going to court, there is an emotional cost to litigation. The process can take months – sometimes even a year or more – and be disruptive and draining; the anxiety and stress can often take its toll.

Irrespective of the above, litigation may be the best option – for example in cases where domestic violence or abuse is an issue – or if there are complex financial matters.

Mediation: five key facts

  1. Mediation involves a neutral third party – often a legally trained mediator – encouraging and supporting you and your ex to help you make the right decisions for both of you.
  2. The mediation process gives you control over your divorce – you don’t have someone else making critical decisions about finances and children.
  3. Opting for mediation will save time, and therefore money. The process can be completed in several meetings over a few months and there are no barristers’ fees to pay.  It is invariably less costly than the court system.
  4. As a more impartial, considered approach, mediation can lessen the emotional impact of separation and divorce – not just on a husband or wife, but on children too.
  5. Once you have both agreed to solutions for your finances and children, the mediator will draft a written memorandum, outlining your joint decisions.  While you don’t need to go to court to have your mediated settlement agreed your solicitor can ask the Family Court to examine and approve the written document.

At Jones Myers we recognise that mediation won’t work for all cases, however it remains a viable, non-confrontational option for very many divorcing couples.

It is vital that all couples find the right way to divorce for their own individual circumstances. Both parties need to be supported and have appropriate legal advice to ensure that they can move on with their lives.

If you have any questions about separation or divorce, including civil partnerships, please call us on 0113 246 0055, leave us a comment below or drop us an e-mail.