The benefits of mediation can be best summarised by the French essayist Joseph Joubert — “Never cut what you can untie.” Now a widely-used feature of many divorces, the presence of a mediator can avoid the need for severed threads, instead helping conflicting couples to unravel their most tangled disputes. Its effectiveness is perfectly illustrated by the impressive 70% of couples who have used it to reach successful outcomes.
But is mediation legally-binding? To get to the bottom of this popular question, we’ll first examine who it might benefit from the exercise — before considering what spouses can do to ensure that any agreements that are reached provide robust support in the years after divorce.
When Might I Need a Professional Family Mediator?
A professional family mediator can be invaluable when a relationship ends. They provide a neutral environment to discuss practicalities like future child arrangements, finances after separation, and division of shared assets — such as savings or the family home. They don’t offer advice or guidance but will listen to both sides, which can help spouses to reach mediation settlement agreements.
This form of dispute resolution is a legal requirement when going to court, and can be especially useful when the problems are so complex that communication has broken down. Therefore, spouses who have significant wealth, international living arrangements, or foreign properties could find it beneficial. It is widely-regarded as an ideal first port of call for any partners who are struggling to communicate and require assistance from a trained specialist.
Family lawyers will usually recommend a professional family mediator in the very early stages of the divorce process. Not only is it an effective strategy for overcoming disputes, but it can also make separating much calmer, cheaper, and quicker than going to court.
Is Mediation Legally Binding?
Once a spouse has understood if they might benefit from a professional family mediator, the next question is often, “Is mediation legally binding?” The short answer to this, is no. However, once you’ve found answers to your primary concerns, it’s often much easier to then turn a mediation settlement agreement into a legally-binding consent order.
All this begs the question, if mediation doesn’t result in a binding legal contract, is it still worth your time? Although the question does have merit, it perhaps ignores the main purpose of the process. Rather than being an opportunity to make quick decisions that instantly become enshrined in an ironclad document, it’s better to view a mediation settlement agreement as the foundation that allows for efficient, binding decisions.
Therefore, if you’re concerned by the answer to the question, “Is mediation legally-binding?”, it might be worth taking a step back to consider where the process slots into the bigger picture.
Here are a three reasons why this form of dispute resolution can be so useful:
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- Flexibility: Communication is ‘without prejudice’. There is no right and wrong and no opinion will be favoured over another. Instead you can work together within a flexible and open-minded framework.
- No Snap Decisions: You’ll get time and space to contemplate areas like shared finances, giving you a bit of breathing room to make the right decisions for you. Vitally, you won’t be forced into agreeing to something that you might quickly come to regret.
- Informed Decisions: Mediation can flesh out the full financial picture, which is especially useful if you feel that your spouse had a better understanding of how much money is at stake at the beginning of the process.
Additionally, although the results of meditation might not be immediately binding, they will be included in a document called a Memorandum of Understanding. This will be created by the mediator and will contain the mutual decisions that have been made along the way. Once this is in place, the hard work is complete and it will be much easier to have them formalised in a court order.
How Do I Make a Mediation Settlement Agreement Legally-Binding?
There are a number of ways in which a mediation settlement agreement — or Memorandum of Understanding — can be translated into a binding legal contract. These include parenting plans, child arrangement orders, and financial consent orders. Here we can see how each of the three main areas of children, division of assets, and property can be set in stone once mediation has laid the groundwork.
Parenting Plans
Making child arrangements is typically one of the most contentious areas of divorce. Spouses will need to agree on family living arrangements, maintenance payments, what happens during holidays, and more. To address this, one of the options at a professional family mediator’s disposal is known as a parenting plan. Although this type of contract might be seen in some quarters as further complicating the already tricky question of whether mediation is legally-binding.
A parenting plan is a document signed during mediation that clearly outlines each parent’s roles and responsibilities post-separation. To all intents and purposes, it carries significant legal weight. The reason being, if either spouse changed their minds after signing, the agreement could be used in court as evidence of a prior understanding. Only in very rare circumstances — i.e. if it was seen to be seriously detrimental to a child’s best interests — would the courts choose to contradict it.
Child Arrangements Orders
While parenting plans are sound enough to withstand legal scrutiny, some spouses might want to take it a step further via a more formal court order. A child arrangements order is basically the same as a parenting plan, as it contains all of the same information about living situations, holidays, contact, etc. However, it can contain additional stipulations, such as religious upbringing, schooling, healthcare, and more.
This type of agreement is created by your family lawyer and submitted to the courts to be formalised. Using the parenting plan as its foundation, once agreed, it will be made binding. However, the courts place the welfare of children at the core of their decision-making, so it will need to be in their best interests above all else.
Financial Consent Orders
The division of assets is another extremely challenging feature of divorce cases. It can be especially complex when valuables such as foreign properties, family businesses, investments, and luxury items are involved. Mediation often helps to address these factors, and anything included in a financial mediation agreement can be fairly easily turned into a formal consent order.
The topic of financial consent orders once again shows that answering, “Is mediation legally-binding?” can sometimes result in slightly ambiguous answers. Although the answer, technically, remains no, all of the work you’ve put into the dispute resolution process won’t be wasted. In fact, a consent order is commonly no more than a ratification of the outcomes that have already been reached between you and your spouse while working with the professional family mediator.
Take a Big Step Towards Closure With Lowry Legal
Although mediation might not offer guaranteed solutions to divorce, it can still play a defining role in reaching a positive outcome. If you’re expecting your separation to be challenging, you need to work with a solicitor who can explore ways to take the sting out of the situation. This means enlisting a respected family lawyer who will embrace forward-thinking strategies and collaborative techniques.
At Lowry Legal we always prioritise the least stressful and costly route to your main objectives. As a leading specialist in high net worth divorce, we’ve helped clients to reach valuable settlements over such intricate matters as business interests, international separation, investment portfolios, and beyond. We do this by combining a sensitive touch with a fearless determination to get results.
A valued member of the Legal 500, we’ll take the time to understand what you want to achieve before devising the best approach to get there. Home to a highly-regarded professional family mediator, our expertise can simplify your circumstances and clarify your options.
Make an enquiry today to discuss your case with a member of the Lowry Legal team.
