Q. I am going to a mediation to discuss my divorce. It's not amicable and I’m concerned about confidentiality. If we can't come to an agreement in the mediation, can what I say during the session be used against me in any way in court?
Mediation is a confidential and without prejudice process – this means that discussions you have in mediation cannot be referred to in court or disclosed to any individuals outside the mediation (including your respective solicitors) without the express consent of both you and your spouse. The mediator also must not discuss the mediation or correspond with either or your respective lawyers without both of your consent. All factual material relating to any financial issues between you (such as your respective salaries and the amount of your respective savings and investments and/or liabilities) are provided on an open basis and can therefore be disclosed to the court or either of your solicitors. However, once you and your spouse have signed your Agreement to Mediate to commence the mediation process, your discussions with the mediator are shared openly between the three of you but, beyond that, both of you must consent for the discussions to be disclosed to any third party. In any event, the discussions always remain without prejudice and therefore cannot be referred to in court.
Q. My husband and I are divorcing – he wants to move back to Spain but still wants joint custody of our child. Can we come to an agreement during a mediation or do I need to go to court?
Court is only ever the last resort for people who cannot reach an agreement or decide on an arrangement that works for them. If you and your husband can agree the arrangements for your son or daughter through mediation then your proposed arrangements can be put into a Memorandum of Understanding by the mediator setting out the arrangements for you to move forward. You can then discuss the arrangements with your respective solicitors who can convert the Memorandum of Understanding into a consent order for the court to approve if there are proceedings in play or if you would both be more content with a court order setting out the arrangements for the future.
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Q. My partner and I are going through a divorce. His lawyers have issued proceedings and now I have a court date. I don’t really want to go to court because our relationship is still civil and I think we can sort this out ourselves. I’ve heard of mediation, but is it too late for that now?
No, it is never too late for mediation. You can attend mediation in parallel to the court proceedings and at any time. You can try mediation to resolve any of the issues that are before the court or you can ask the mediator to deal with any discrete issues that may arise. It is a flexible process that can be designed around you and your partner. I would suggest you contact a mediator (the Family Mediation Council can help you find one in your area if you do not have a recommendation) and have an initial and brief discussion with the mediator about the issues between you and your partner. If you are content with the mediator, pass the details on to your partner and ask him if he would consider the process. If he agrees, a mediation can be arranged to try and help you resolve the issues between you without the need for court involvement or to narrow the issues that the court is being asked to consider. If your partner agrees, you can then adjourn the court proceedings to see if you can resolve the issues through mediation or cancel the proceedings altogether.
Do you have a question for Katie? Please email her.
Q. My wife and I have been married for 14 years and we have two children together. She recently told me that she wants a divorce but I have no money. My wife is the main bread winner and controls all of our finances. I don’t have any private savings to pay for a solicitor – what can I do?
A: As the financially weaker party, you have a number of options available to you to ensure you get fair and equal access to legal advice similar to what your wife may be receiving. However, before we steamroll in, I would suggest speaking with your wife about what she is proposing in terms of your divorce, the care of the children, financial arrangements and the payment of legal advice. You may reach an agreement with her and as a result, you may only need to instruct a lawyer to draft any legal documentation to finalise everything.
However, if you are unable to come to an agreement or even have a constructive discussion about such sensitive issues, or you would like legal advice on any proposed settlement before it is finalised (which I would always advise) or assistance with completing any court document you can:
b. A Legal Services Order which would involve an application to the court for your wife to fund your legal fees. This will either result in:
i. the court ordering your wife to pay your legal fees (if your evidence supports such an order);
ii. your wife making an offer to cover your fees in full; or
iii. your wife making a suitable contribution towards your legal fees sufficient to enable you both adequate and fair access to the legal profession to deal with the issues you are facing as a result of your separation/divorce.
Katie is Partner and Mediator in Winckworth Sherwood’s Family Team, with over 10 years’ experience advising on all family issues.