Beginning at the End: How mediation can take couples along the pathway to a binding court order

Many couples welcome mediation as a chance to sort out matters directly with each other, rather than discuss matters at arms length via third parties, or go to court.   However they also want matters to have a final and binding outcome, and they frequently assume that mediation will not be able to help them with that.

Contrary to these beliefs, mediation can indeed offer a straight pathway from an agreement in the meeting room (real or virtual) to a final and legally binding outcome.   This is particularly true for financial matters, as only a court order can declare a ‘clean break’, meaning there is no second bite of the cherry and matters are concluded once and for all.

In the past, mediation could only offer couples a write up of an outline settlement, in very broad terms.  It was then left to the parties’ solicitors to draft up all the detail to flesh out the main outline.    Unfortunately this could and did lead to deals being unscrambled, which was very disappointing for couples who thought that they had crossed the finishing line.

The reason why matters could unravel at that stage is because often the ‘devil is in the detail’.  Very precise legal terms and language are needed for draft consent orders, which is written up using complex precedents and then sent to court for the approval of a judge.   Given that the judge’s own name is attached to an order, they will not simply approve every draft that crosses their desk.   Judges will scrutinise each proposal to make sure that it is a document which is both workable and also worthy of court order status.   Many couples who try to submit a DIY versions to court have discovered this the hard way.

Now mediators are more frequently delving into that detail in the way they work.  When the couple are both in front of them, they can go through the lengthy precedent paragraphs to draw out options and opinions on some of the finer points that must make it into the draft order.  If either party is unsure about some of the more technical points, then these can be left to when the paperwork goes back to their lawyers.   However at least at that stage they will avoid the unpleasant surprise of needing to draw together some tricky loose ends and will understand why there is a need for further advice or discussions.

Once the mediator has captured the fine tuning that a court order would require, the couple then have the option to ask either the mediator or one of their solicitors to prepare the first draft of the consent order.  The couple may chose a lawyer if they have been heavily involved, perhaps even before mediation began.  If they chose the mediator, then the mediator makes clear that they are not endorsing the arrangement or creating a binding agreement at that stage. As it is such an important and irreversible document, the couple need to run the proposal past their own lawyer, whoever drafted it first.  That legal advisor will check it through the lens of whether it is acceptable for their client in particular.    This is not a doubling up of costs, as a mediator cannot split themselves in two and advise both parties whether or not this is a fair outcome.  Each person needs the reassurance from their own advisor, who looks just to their interests, about the implications of the arrangement and the fine tuning of the drafting also.

Of course some people are understandably nervous about whether the solicitors may decide that the arrangements are not good enough and throw out the proposal in order to take a punt on getting a better deal elsewhere.  This is however very unlikely to happen.  Firstly the mediator encourages parties to have taken the proposals being contemplated to their advisors at an earlier stage, so that there should be no nasty surprises at the direction of travel in mediation.  Secondly solicitors are settlement realists: the law in relation to sorting out financial matters is very wide and so there is absolutely no guarantee that a better deal can be achieved elsewhere.   Contrary urban myths, lawyers do not want to ratchet up unnecessary costs.  They want clients who will be happy with their service and their methods of resolving disputes as constructively as possible.   Happy clients will be likely to refer others to them in the future.

Thus, an efficient, cost-effective teamwork between mediators, the couple themselves and their own advisors is one of the best ways to reach a legally binding conclusion to financial issues.   The outcome of a court order reached via this pathway is as binding and effective as if matters had been drawn out through court proceedings, at great expense.   There is another equally important cost saving: couples who settle in this way are rewarded with a peace dividend for themselves and their families, and with the knowledge that they successfully navigated a civilised pathway to settlement.