What is mediation in divorce?
We have produced this guide to explain the divorce process, how to go about it and to explain how family mediation can help. Often clients underestimate the complexity associated with divorce. The law can be complex and the process itself timely, costly and stressful. With the right attitude and support, you and your spouse can engage in a peaceful divorce process that achieves positive outcomes for both yourselves and your family. Mediation for divorce can be a key part of the process, giving you the reassurance that any decisions made are in the best interests of your future.
This guide will firstly explain the law and the process necessary to successfully divorce your ex-spouse. Then we will highlight disputes that may arise throughout the divorce process, such as the division of assets and child arrangements. Through doing so, this guide will offer mediation as a useful mechanism to ease these complexities and assist in reaching amicable and positive agreements for your family post-divorce.
Divorce should not be seen as a shameful thing – it is more common than people think. Relationships break down and this can have a significant impact on you, your spouse and your children (if you have them). Often, this can be a very emotional and stressful experience. Divorce mediation can support you and all parties involved to try and make the transition as calm, positive and productive as possible. Mediation will support you to achieve positive outcomes and ease anxieties as to how life will fare post-divorce. You are not alone; trained mediators are no strangers to the issues and intricacies associated with divorce. Mediation is not for everyone, but it may be the right thing to ensure a positive future.
Please note that nothing contained within this guide amounts to legal advice and all information is assumed to be correct at time of publication.
What is the UK law for divorce?
Firstly, it is useful to be aware of two key words that often cause confusion throughout the divorce process:
Petitioner – The spouse applying for the divorce.
Respondent – The spouse responding to the divorce.
There is one ground for divorce, that being that the marriage has irretrievably broken down. To prove this, this ground must be evidenced by establishing one of five facts. If the respondent admits fault to any of these facts, the divorce process is far less arduous. However, if the respondent defends the petition, you will have to prove the facts to the court.
Adultery
Requires evidence of adultery that has led to the petitioner to find it intolerable to live with the respondent. Where the respondent admits to adultery, there is no evidential requirement. You do not need to provide reason or explanation as to why. However, if you and your spouse lived together for a period of six months immediately following the adulterous act, then this fact cannot be relied upon. If the respondent denies the adultery, you will have to evidence that the adultery took place.
Unreasonable behaviour
To rely on unreasonable behaviour, you must prove that the respondent has behaved in such a way as to result in the marriage being unreasonable. There does not have to be one particular instance of unreasonable behaviour, you can rely on a series of events that collectively constitute unreasonable behaviour. This can be abusive comments, physical abuse, humiliation etc.
Desertion
Desertion requires evidence that your spouse has deserted you for a continuous period of at least two years immediately preceding the application for divorce. Desertion amounts to your spouse leaving you and being out of reachable contact for at least those two years.
Separation for two years (with respondent’s consent)
This fact amounts to you and your spouse living separate and apart for a continuous period of at least two years. You cannot be living in the same home. Additionally, the respondent must consent to the divorce for this fact to be relied upon. This fact requires no fault and is often a path many couples choose to take to divorce where relationships remain somewhat amicable.
Separation for five years
Separation for a continuous period of at least five years does not require the consent of the respondent. If you and your spouse have lived separate and apart for at least five years, you can rely on this fact.
What is divorce mediation process?
There are four key steps throughout the divorce process which will be outlined below. Do not be deterred by legal language and remember that you can get support from Direct Mediation Services in your mediation session or Support Through Court, for example.
Step 1: Issue the divorce petition
Firstly, you must submit a petition for the divorce by using Form D8. There is a £550 court fee to do this, which the petitioner is liable for, although you may be able to get help with this if you are on a low-income or are in receipt of certain benefits, such as Universal Credit, Employment and Support Allowance, or Income Support (non-exhaustive). You may not have to pay the full court fee or get a discount.
The D8 form requires you to explain and give evidence as to why the marriage has irretrievably broken down, as well as illustrating arrangements regarding children and finances (divorce mediation can help you with this). Once submitted, the court will then send this petition to the respondent.
Step 2: Your spouse’s response
Once the D8 form has been served to your spouse, you must await their response: an acknowledgement of service. This requires the respondent to confirm receipt of the divorce papers, to state whether they are content with the reasoning and wording contained in the D8 form, and finally whether or not they consent to the divorce or wish to defend it.
The respondent needs to acknowledge the petition and submit this to the court. Where they fail to do this, the court will not chase the respondent. You must instruct a court bailiff or a process server to hand the petition to the respondent personally. This is essential where the respondent ignores the petition and extra costs will be incurred through taking this route.
Step 3: Decree nisi
Once the respondent has acknowledged the petition, you must apply to the court for a decree nisi and provide full statement supporting the divorce. The decree nisi is essentially a “halfway point” where the judge considers there to be no outstanding reason as to why the divorce is unreasonable. This will involve establishing one of the five facts. Where the respondent admits to, or consents to the fact, this will pose less challenging. However, if they defend it, you will need to evidence the fact relied upon. A judge will consider your petition and statement of facts. If the judge accepts the facts and evidence relied upon, the petition will be listed for a decree nisi.
Step 4: Decree absolute
Once the decree nisi is pronounced you must then apply for a decree absolute. This has a time limit of six weeks and one day. Once you have applied for the decree absolute, and this application is granted by the judge, you and your spouse will be divorced.
If you fail to apply for the decree absolute within the above time limit, the respondent is able to apply for a decree absolute after 4 and a half months – however, this incurs a fee. Additionally, this route will involve a court hearing and cannot be finalised until any outstanding matters (including ancillary disputes) are completed.
If you are on a low-income or are in receipt of certain benefits such as Universal Credit, Employment and Support Allowance, or Income Support (non-exhaustive), you may not have to pay the full court fee or get a discount.
How does divorce mediation work?
Mediation in divorce is a form of alternative dispute resolution, that can assist you and your spouse to resolve issues that may arise during the divorce process. A trained mediator will facilitate a discussion where you both can make known what you wish for the future and what you think is fair. Mediation will help you both in expressing your wishes and feelings in a productive way, with the goal of achieving positive outcomes for you and your family post-divorce.
Your mediator will act as a “referee” throughout any discussions and is fully trained to identify issues and assist you in resolving them. Your mediator will never take sides and will always remain neutral. Whilst they cannot give you advice, they can support you by giving you both legal information. People often seek legal advice prior to coming to mediation – this is a conversation you can have with your mediator. Mediation is a legally privileged process, meaning that what is discussed in the mediation room does not leave that room. Arguments and discussions had, cannot be referred to in a court hearing. The mediator will explain to you the legal process associated with divorce.
How can mediation help in my divorce?
The above steps are somewhat simplified, for throughout the divorce process, you and your spouse will need to come to agreed arrangements regarding the division of your assets and finances, as well as child arrangements. As mentioned before, this is necessary to include in your D8 form – the court will not accept a divorce where this has not been agreed upon.
Some legal advice may be necessary in this regard, but mediation can assist you in coming to agreements. The division of finances and assets (including the family home) often leads to the most conflict throughout the divorce process and can lead to a timely, costly and stressful divorce process.
In relation to the division of assets, the usual starting point is a 50:50 split, though this often changes dependent on contributions. This guide cannot provide legal advice; however, mediation can assist you and your spouse to come to agreements as to how finances and property should be divided. If it is too difficult for you to reach agreements yourselves or through mediation, you should seek legal advice.
If you choose to use divorce mediation, we will assist you in discussing key arrangements such as:
- A parenting plan to facilitate effective co-parenting. This can include living arrangements (how often and where), how decisions will be made and financial contributions.
- The division of assets: who gets what and how much? What are the fairest options? How can we agree?
- Providing future maintenance to your spouse: In some cases, one spouse may work whilst the other does not. In such situations, you will have to come to agreements as to how you will support your spouse financially in the future. We can assist you in deciding how much you will pay and for how long.
These key arrangements, however, are not the only points that can be discussed. Anything which you may be concerned about post-divorce can be raised and we will assist you the best we can to facilitate positive outcomes. This could include matters such as who will do the school run, the religion of your children, or possibly who will care for any pets in the family home.
Divorce mediation is a great tool to assist you in reaching agreements that both you and your ex-partner can live with. Once any agreements/arrangements have been reached, a trained mediator will provide you with an official document (A Memorandum of Understanding for financial matters or A Child Arrangements Plan) that contains all agreements made during the session. This is not a legally binding document, but it provides you and your spouse with the knowledge and understanding as to what has been agreed. If the Memorandum of Understanding has agreements associated with finances or property, it is recommended that you take this to a lawyer and request it be written up in a Consent Order. By doing so, those agreements in a legally binding document that is enforceable in court in the event your ex-partner fails to do something that you agreed to. You can apply for a consent order once the divorce process is underway – it will need to be affirmed by a judge which will incur a cost of £50 and you will be subject to solicitor fees. However, you may be able to get Legal Aid Family Mediation.
For mediation to be an effective tool, both you and your spouse must be willing to participate in the mediation process. Unfortunately, mediation will not be effective where there is a lack of desire to achieve positive outcomes post-divorce. Of course, conflicts and disagreements may arise throughout the mediation process – we do not expect no conflict to arise! Remember, we will always assist you to reduce that conflict and work together.
Divorce or mediation for me and my family?
If you have not already decided that mediation is the right choice for you and your family, the following points will provide you with reasons as to why mediation is a better choice than engaging in an acrimonious and adversarial court process.
Your children
If you have children, then surely you want to put your children first. Divorce is a difficult and stressful process for all involved, especially your children. They will likely be confused and be faced with a lot of uncertainty as to how their lives will change once their parents have separated.
Perhaps the situation becomes so acrimonious and your children result in being exposed to a court process that can be seen as scary and difficult. Mediation can prevent this from happening. By working together and putting your children first, a trained mediator will support you in coming to agreements before the court process becomes necessary. Through doing this, you can always ask the question as to how any decisions are going to impact upon your children. This not only reassures you that your children will be okay, but also reduces the upset your children may be facing throughout the divorce process.
Time
The courts are inundated with cases and to actually get your case heard and to reach a judgment, can be a timely process. The most time-consuming aspect of the divorce process, that is avoidable, is agreeing on the arrangements discussed throughout this article. Mediation can speed up the divorce process by supporting you and your ex-partner to reach agreement in a positive and peaceful environment in a much more efficient time than through the court process.
Money
Yes, there are costs associated with divorce mediation, but be assured that this is, in more cases than not, a much cheaper process than going through court. It is rarely advised that you go through the court process unrepresented and without legal advice – the costs of solicitors/barristers are much higher as compared to using mediation. Additionally, the more time you spend in court, the more your court and lawyer/barrister fees increase. If you can settle at mediation, you and your ex-partner will likely save a lot of money.
You take control
A key difference to using mediation, as compared to lawyers and the court process, is that you and your ex-partner are in control. Lawyers will advise you on what they think is best and will likely engage in lengthy debates with the opposition. In mediation, you will both engage in this debate and assist each other to make decisions that are equitable and fair for you both and your family. Again, you can put your children first and focus on your futures. Being involved directly in the discussions impacting upon you and your family gives you the reassurance that such decisions are in the best interests of all parties in the future. All the options and all avenues can be explored in the divorce mediation process, so that you have the knowledge that decisions made are right for you. The courts make decisions for you; mediation allows decisions to be made by you and your spouse. You have to live with court decisions regardless of your thoughts of them.
A less intimidating setting
If you have been in a court room before, you will know that it is not the most welcoming of environments and can be rather intimidating. The adversarial setting of the courtroom can be very off-putting, and it can trigger a far more argumentative atmosphere. This is quite the opposite in the mediation environment. Everybody is put on the same level – no one takes a higher stand; no judge on a pedestal. You will be able to form a relationship with your mediator and together you can work out what is best for the future.
Flexibility
Divorce mediation is a far more flexible process that can work around you and your life. Court dates are fixed, and it can be very difficult to change them. You may have to miss work and/or get childcare arrangements. Mediation is a service that can happen anywhere at any time.
Your privacy is always respected and confidentiality is paramount
Please be assured that mediation is a confidential process – your privacy will always be respected. This provides you with the comfort and knowledge to know that you can discuss anything.
Divorce mediation services summary
Unfortunately, far too many people who divorce do not think about family mediation and immediately go to a family solicitor. It may be worth having a conversation with an accredited mediator near you to see if it could help you and your family, instead of starting costly legal action. Ultimately you could save thousands of pounds, shorten the process and make the decisions yourselves instead of handing them over to a court.
We are an award-winning family mediation firm with mediators accredited by the Family Mediation Council.
Divorce mediation starts with a Mediation Information & Assessment Meeting (MIAM), which costs £120 (including VAT). This is a meeting you attend by yourself with a mediator, where you explain the situation from your perspective. The cost per hour per person remains the same if you progress to mediation.
The feedback from our customers has been so positive. We are confident that family mediation will be a good starting point to discuss the problems you and your family are facing.
Information about divorce mediation?
You can get in touch with Direct Mediation Services by calling 0113 4689593, email info@directmediationservices.co.uk
Disclaimer
The information we have put together in this guide is only for general guidance. If you think you need legal advice, we suggest that you get in touch with a family solicitor.
Direct Mediation Services is a trading name for The Intelligent Solutions Group Ltd and we have tried to ensure that the information presented is accurate. However, please remember that we cannot accept liability for any loss, damage or inconvenience resulting as a consequence of any use of or the inability to use any information here. We always do our best to provide the very best information available, but we cannot promise that the information we have written will be free from errors. We are also not responsible for any claims brought by third parties coming from your use of information found on our website.
Please note that Direct Mediation Services takes no responsibility for the content of websites it lists. In addition, please understand that by listing a link it does not mean that we endorse the service offered. Direct Mediation Services does not have control over the linked pages being available.
Questions about divorce mediation
What are the benefits of using a mediator for a divorce case?
The main benefit is the speed of moving things forward. In mediation you are not waiting for solicitors to write letters and then having to pay your own solicitor to write a reply. Your mediator will support you both through discussions, whether they are face-to-face or shuttle.
If I do mediation for my divorce, do I still need a lawyer?
Mediators can provide you with legal information, but they cannot provide you with advice. In these circumstances, you may need a solicitor to answer questions, so that you know you are making informed decisions within the mediation process.
Will mediation make the divorce process quicker?
In many cases, mediation can speed up the process, as you will be working together to try and find a way forward that works for both of you and your family.
What issues can mediation deal with during a divorce mediation?
Generally, mediation deals with child arrangements and finances post separation or divorce. It can cover other issues, such as the grounds of the divorce.
