Is my settlement fair?

New Family Procedure Rules mean that all parties need to consider non-court-dispute resolution (NCDR) to resolve their disputes before making a court application. Unless they fall within one of the exemptions, which have also been limited by the recent changes.

The rules also mean that throughout the court process the parties should be prepared to consider NCDR. Those involved in the proceedings will need to be prepared to explain to the court why they may not have engaged in some form of NCDR. And the court has the power to order the parties to reconsider the use of mediation as a method to resolve their dispute, and can penalise those who don’t with costs orders.

For many, this means attempting resolution via mediation. For those taking this route we highlight three points to consider to ensure you go to mediation well informed and are able to make the most of what it has to offer:

1. Mediators cannot give you legal advice

You may find yourself reaching an agreement at mediation but not fully understanding your legal rights. So, it is well worth taking advice from a family lawyer to understand the parameters of what you are discussing and likely outcomes. This gives you the best chance to reach an agreement that works for you, and confidence, if needed, that it is fair.  

2. The mediator isn’t there to make any decisions or judgements

It is down to those involved in the dispute to find an agreement, but the mediator will help to facilitate this and ensure that the sessions stay on track. They can inform as to the law but not give a clear view as to outcome.

3. An agreement reached at mediation is not legally binding

One party may not adhere to the agreement or aspects of it, but you have no legal options to enforce. The only way to do so is to make the agreement legally binding.

So once an agreement is reached at mediation it should be drafted into a consent order by lawyers (some mediators will do this too) and sent to the family court for approval. Only when it has been approved by a Judge does it become legally binding. 

How we can help you - whatever stage you're at 

• As family lawyers we can be involved in mediation from the beginning, either by being present at the mediation sessions or (much better) advising you in the background between mediation sessions to help ensure the agreement reached is fair. This is not expensive and often helps keep the mediation on track to a successful conclusion.
   
• If you have already reached an agreement at mediation, the document and process are 'without prejudice', this means that neither person is bound to any proposals until you make the decision, usually after taking legal advice, that you want to be bound by them.
   
• We can review the agreement for you and advise from a legal perspective whether it is likely to be considered a fair settlement or whether you could be entitled to more.   
   
• Once you are content with the agreement we can then draft it into a financial consent order.  This is the document which is then sent to court to be made legally binding. 

If you are at all concerned as to the agreement you have reached at mediation or are currently going through mediation and wish to seek legal advice please do get in touch.