Court or mediation – is it a straight choice?

Deciding to end a relationship is the start of a new chapter in the lives of those affected but getting to the point at which people can genuinely move on, having worked out arrangements for children, finances, property etc, takes some time. It also takes emotional strength.

That is true whether court or mediation is the route taken; neither is ‘easy’. However  clients often ask us which we’d recommend.

This isn’t black and white. The reality is that one will be ‘right’ for some couples, and the other for others. For some, there won’t be a choice at all.

Here’s what we mean by that:

Why mediation suits some divorcing couples

Mediation is a process that doesn’t involve a court room, a judge or the raft of rules that people expect of a formal process. It’s generally quicker and less expensive than court and is often regarded as a more constructive way of resolving issues, such as where children should live post-divorce and who should stay in the family home.

These benefits tend to flow from mediation being led by an independent person – the mediator – who works with the parties to help them agree on the things that need to be sorted out. However for that to happen, of course, the divorcing couple must be willing and able to cooperate with one another.  

Why court is sometimes the right ‘choice’

There are a number of reasons why couples find themselves on the path to court, rather than mediation or another form of alternative dispute resolution (collaborative law and solicitor negotiation are some other options).

One reason is that they can’t resolve things between themselves, even with the help of a mediator or other specialists. While attempting mediation is usually a prerequisite to applying to the family court (the parties must first attend a Mediation Information and Assessment Meeting to see if their case is suited to being resolved without involving the court), some relationships are too badly damaged for it to work. In those situations, a judge may need to be asked to decide the detail of the divorce.

Another reason for using the family court, rather than mediation, is where there is evidence of domestic abuse or child abuse. It’s recognised that in those circumstances mediation may not be appropriate.

The individual circumstances will tend to dictate whether mediation or court should be the route to resolution. It’s not always a choice. However, there are certainly situations in which two people can decide to do their very best to make mediation work (and, conversely, situations where one or both decide not to). In our experience, those that take advantage of an opportunity to resolve their issues out-of-court tend to reflect on a more positive experience once everything has been wrapped up.

For advice on separation or divorce, contact our team on family@bsandi.co.uk or call on 01264 353411 for a free initial 30 minute appointment.