When a relationship ends and there are children or finances to consider, most separating couples...
When a relationship ends and there are children or finances to consider, most separating couples face the same underlying question: can we reach an agreement ourselves, with some help, or do we need someone to decide for us? In England and Wales, there is no automatic or prescribed route to a resolution. An agreement can be made between the parties themselves or following non-court dispute resolution. The most popular forum within non-court dispute resolution is mediation. Mediation and court proceedings differ sharply on cost, speed and the kind of outcome they produce. Understanding those differences early can save a great deal of money, time and stress.
Two very different routes
Family mediation is a voluntary, confidential process. An independent, accredited mediator helps you both work through the issues and reach your own agreement about children and/or finances. The mediator does not take sides and does not impose a decision; their job is to help you find solutions that work for both of you.
Court proceedings work the other way around. You apply for an order, and if the application proceeds to a final hearing, the judge weighs up the evidence, and the judge imposes a decision that is legally binding on both of you. The outcome is taken out of your hands.
The required first step: a MIAM
Within financial remedy proceedings, the court expects applicants to have attempted to resolve their dispute outside of court and before you can apply to court for most child or financial orders, you usually have to attend a Mediation Information and Assessment Meeting, known as a MIAM.
What is required, in most cases, is that you attend the MIAM, a short meeting where a trained mediator explains how mediation and other non-court options work and assesses whether they are suitable for your situation. You then decide whether to go ahead. There are also exemptions from the MIAM requirement, including where there has been domestic abuse or where the matter is genuinely urgent.
Cost
Court application fees are published and fixed. As things stand, applying for a child arrangements, specific issue or prohibited steps order (Form C100) costs £270, applying for a financial order other than by consent (Form A) costs £321, and seeking the approval of a financial consent order costs £62. A divorce or dissolution application is a separate £628. You can check the current figures on the family court fees page.
The application fee, though, is usually the smallest part of the bill. The real expense of a contested case comes from legal representation, and sometimes expert reports and repeated hearings, which can run well into thousands of pounds for each person. Mediation generally costs considerably less, because you are not funding two sets of lawyers and the process tends to take fewer hours overall. Fees vary depending on the mediator and the number of sessions.
There is also financial help available. The Family Mediation Voucher Scheme offers a one-off contribution of up to £500 per family towards the cost of mediation. It is aimed at disputes involving children (and at financial matters where these are tied to a child dispute), it is not means-tested, and the mediator applies for it on your behalf. It does not cover the cost of the MIAM, and because it is a time-limited scheme that is renewed periodically, it is worth checking the current position before relying on it.
Speed
Court is slower, and not only because of the issues in dispute. Cases compete for limited hearing dates, and backlogs are a long-standing problem. Timeframe to get a court order following fully contested proceedings vary greatly but it is likely to take at least one year, and complex financial or children disputes can take considerably longer.
Mediation is usually quicker. Because you are not waiting for the court to list your case, a series of sessions can often be arranged and completed within a matter of weeks or a few months. The pace does, of course, depend on both people being willing to engage.
Control and outcomes
The difference in outcomes is more than just who decides. In mediation, you both shape the result yourselves. One point that is often misunderstood is a mediated agreement is not automatically legally binding. To make a financial agreement enforceable, you would normally convert it into a consent order and ask the court to approve it, which is a straightforward, low-cost step compared to a contested application.
An order made by a judge within contested proceedings, by contrast, is binding and enforceable from the moment it is made. The trade-off is that the process is adversarial and the decision is no longer yours to make. Agreements that people have helped to build themselves tend to be better understood and more readily stuck to, which matters a great deal where two people will go on co-parenting for years.
While applying to court provides certainties that a final order will eventually be made by a judge, parties still have the ability to come to an agreement within proceedings and provide the court with a consent order to finalise matters. More often than not, parties will come to an agreement before a final hearing, normally at dispute resolution hearings which are designed to facilitate effective discussion and negotiations.
When court is the necessary route
Sometimes where there has been domestic abuse, where a child may be at risk, where the matter is urgent, or where one person simply will not engage or cannot be trusted to be open about their finances, court may be the appropriate or only possible route. The MIAM exemptions exist precisely for these situations.
An important consideration is the family court can take a party's unreasonable refusal to consider non-court options into account when determining whether there should be an order for costs.
Where to go from here
The right route depends on your particular circumstances: what is actually in dispute, how well you both can still communicate, and whether there are any safety concerns. For many families, mediation is often the quicker, cheaper and less bruising option; for others, court is the appropriate forum to deal with matters.
If you are weighing up your options, we can talk you through which route fits your situation and help with the next step to resolution.