The Advantages and Disadvantages of Mediation in Divorce

Mediation is a voluntary process that helps separating couples resolve disputes with the help of a trained, neutral third party – a mediator. The aim is to reach mutually acceptable agreements on important issues such as:

• Division of property and finances.
• Child arrangements including with whom they live and spend time with.
• Spousal maintenance.

Mediation takes a collaborative approach, encouraging open dialogue, compromise, and long-term solutions. Unlike a judge, the mediator does not impose decisions but facilitates discussions to help both parties find common ground.

Before applying to court for certain family proceedings, such as disputes over finances or child arrangements, it is a legal requirement in England and Wales for most people to attend a Mediation Information and Assessment Meeting (MIAM).

A MIAM is a short meeting with a qualified mediator. Its purpose is to inform both parties about how mediation works, assess whether mediation is appropriate for the circumstances and explore whether both individuals are willing to engage in the process.

However, there are some exceptions where attending a MIAM is not required. These include cases involving domestic abuse, urgent applications (for example for child protection), and situations where one party lacks capacity.

If a MIAM is required and not attended, the court may delay or refuse to process the application until this step is completed.

Mediation typically involves several sessions where both parties, either together or separately, work through the issues with the mediator’s support. The structure of each mediation meeting may vary depending on the complexity of the case and the couple’s willingness to cooperate.

The mediator will:

• Help identify the issues to be resolved.
• Encourage honest communication.
• Suggest possible compromises.
• Draft a summary of what has been agreed.

Although mediation can lead to a written agreement, often called a Memorandum of Understanding, this is not legally binding unless it is converted into a Consent Order by a solicitor and approved by the court.

While divorce can be emotionally and financially draining, mediation provides a more constructive alternative to going to court. The advantages of mediation in divorce include:

• Cost-Effective: Mediation is significantly less expensive than going to court. It often involves fewer solicitor hours and avoids court fees.
• Quicker Resolutions: With fewer formalities and no waiting for court dates, mediation can lead to faster outcomes.
• Greater Control Over Outcomes: Couples retain decision-making power rather than having outcomes imposed by a judge.
• Private and Confidential: Unlike court hearings, mediation takes place in a private setting, helping protect personal information and reduce conflict.
• Preserves Co-Parenting Relationships: Mediation encourages cooperation and respectful communication, which is particularly important where children are involved.

The benefits of divorce mediation often extend beyond the legal process, promoting healthier post-divorce relationships.

Although mediation can be a helpful tool for many separating couples, it’s not without its limitations. Disadvantages of divorce mediation include:

• Not Always Appropriate: In cases involving coercion, manipulation, or abuse, mediation may be unsuitable or even unsafe.
• May Not Result in an Agreement: If parties are unwilling to compromise or communicate, mediation can break down, requiring court intervention anyway.
• Imbalance of Power: One party may dominate the process if the other lacks confidence or awareness of their legal rights, potentially leading to unfair outcomes.
• No Legal Advice: Mediators cannot give legal advice, so it is important to consult a solicitor alongside the process
• Agreements Aren’t Automatically Binding: Unless formalised into a legally binding document, such as a Consent Order, mediated agreements may not be enforceable.

Mediation offers a flexible and less confrontational alternative to court proceedings, helping many couples reach practical and amicable solutions during a difficult time. However, it’s essential to assess whether it’s right for your situation, and to be aware of the legal obligations, including the requirement to attend a MIAM.

At GSB, our experienced mediation solicitors guide clients through every step of the separation process. We advise on mediation options, assist in formalising agreements, and support those who need to proceed to court. 

If you’re considering divorce and want clear, expert advice, get in touch with our experienced family law team today.