Mediation

What is mediation?

Mediation is a form of Alternative Dispute Resolution, which is highly flexible, confidential, and voluntary. Furthermore, it provides a forum in which parties can gain a better understanding of each other’s positions and work together to explore options.

The element of confidentiality in this process can avoid issues being made public that parties may wish to keep private.

Mediation allows a non-biased third party to assist the parties in working towards a negotiated settlement of their disputed matter while retaining control of their decision on whether they wish to settle and if so, on what terms.

The most common style of mediation is facilitative mediation in which, the mediator will work to facilitate an agreement between the parties and not decide the case on its merits like an arbitrator or a judge may.

Mediators may use evaluative mediation, in which they evaluate the matter at hand and assess the strengths and weaknesses.

Mediation agreements will typically require parties to treat all documents and discussions as without prejudice and confidential. Therefore, what is said and written cannot be used in later proceedings if the matter is not settled through mediation.

Parties will attend mediation expect in unusual circumstances and will be accompanied by their lawyers.

Most commonly mediation will be used to narrow the issues in dispute in order to prevent conflict from spreading and to resolve disputes.

The mediator will meet privately with each party to discuss the matter confidentiality, which allows each party to be forthright with the mediator and gain a realistic look at their case in private and without any apprehension that any weaknesses may be communicated to the other party.

Purposes mediation can be used for:

Scoping – identifying the matters in dispute.

Deal mediation – negotiating terms of the transaction or deal.

Cost mediation – reach a settlement for any disputes over costs.

Policy making mediation – helping determine public policy, rules, and regulations.

Timing

Mediation can take place at any stage however by ensuring that the timing is right will prove to be the most successful and cost-effective mediation.

The optimum time differs according to the nature of the matter and the relevant factors may change over time.

If the issues are properly defined and a proper exchange of documents and information has occurred, then the best time to mediate may be before the proceedings are issued because this will maximise costs and be more time effective.

The overriding objective on dealing with cases justly and at a proportionate cost may support the early use of ADR.

Benefits

Overcomes communication problems between the parties.

Mediator can assist parties in working through deadlock situations that can be created by personal or competitive negotiations.

Enhance or preserve business relationships and arrangements.

Confidentiality and privilege

Parties are able to choose a mediator who is most appropriate for them, from a wide selection.

Legal costs, management time and opportunity costs can be reduced.

Produce outcomes that may not be possible via determination by the Court or arbitration.

Flexible process, which can be tailored to meet the parties’ need and issues.

Clients are able to actively participate in the process and control the outcome.

Mediation is voluntary and can withdraw or terminate the process at any time.

The mediation process is culturally sensitive and adaptable.

Mediation is a low-risk process.

In the situation that parties do not reach a settlement, they would have benefited from the process by:

Having the opportunity to listen to the others opinion.

Narrow the issues in dispute.

Test their strengths and weaknesses with the mediator.

Disadvantages

If unsuccessful, mediation will add time and costs to the process of resolving the dispute.

There is a concern that mediation may reveal the client’s strategy.

As mediation is non-binding, some may argue that an un-cooperative party could manipulate the voluntary nature of mediation.

The mediator does not have the power to order or require disclosure however the parties can agree between themselves of they wish to disclose and the extent of their disclosure.

Parties who consider their case strong may not feel it is adequately recognised through mediation.

Suitability

Mediation may be suitable in circumstances where:

Settlement discussions were unsuccessful.

Cost of litigation will be significant in proportion to the amount in question.

Private and confidential resolution is necessary.

Parties is very emotional in regard to the situation.

A creative solution is desired.

A quick solution is required.

Trial is likely to be time consuming and complex.

Parties may wish to associate in the future.

It may be helpful to clarify or narrow the issues.

Risk of loss may be substantial if the case proceeds to trial.

Trial may be lengthy and complex, which could lead to disproportionate costs.

The dispute is cross-border.

Cost of Mediation

Cost of Mediation may vary depending on number of factors: experience of mediator, location of the centre, whether they are lawyers such as Barristers or Solicitors.

Mediation could be very cost effective when the case is suitable and there is a prospect of settlement.

At Fisher Wright Solicitors will can assist you with the referral to the best Mediators in London and assist you through mediation process from the beginning to the end.

Maintenance Issues during Divorce

If you are in the process of separating from your partner or the divorce proceedings already commenced and whether you have dependent children, you can apply to the Court to make an interim order in relation to your maintenance and interim periodical payments.

At Fisher Wright we can assist you in applying for the following Interim Orders whilst your case is ongoing:

  1. Maintenance Pending Suit
  2. Legal Services Order

Maintenance Pending Suit

Maintenance pending suit (MPS) is financial support paid by one spouse to the other after divorce proceedings start, until the divorce is finalised and a final adjustment of finances is made between the parties.

On a petition for divorce, nullity of marriage or judicial separation, the court may make an order for MPS under section 22 of Matrimonial Causes Act 1973. For civil partnership cases, paragraph 38 of Schedule 5 to the Civil Partnership Act 2004  contains provisions the relevant provisions.

It is very important to remember that the application for MPS can only be made before the Decree Absolute is granted. Following the pronunciation of the Decree Absolute an order for interim periodical payments can be sought instead.

 

 Applying for maintenance pending suit

Genuine need

This is the most common reason for applying, where the applicant has no income, and the respondent is refusing to pay an adequate level of maintenance allowing you to maintain lifestyle you had during the marriage. Cases often involve the breadwinner leaving the home and paying no maintenance at all, meaning that the homemaker and children cannot pay their daily bills.

Before starting a maintenance pending suit application

It is important to treat MPS applications with caution. It is good practice to prepare a budget and try to negotiate before issuing an application to the Court. At Fisher Wright we will enter the negotiations on your behalf and ensure that all options are explored before issuing the application to the Court.

In small money and average money cases, the costs of an application are likely to be disproportionate to the relief that is being sought, particularly because such an application is only an interim application and is likely to be effective for months rather than years. In big money cases, the court may consider the application disproportionate and each application will be considered on its own merits and needs. The rule of “no order as to costs” is suspended for MPS applications and the winning party will have the opportunity to apply for costs and these are likely to be summarily assessed by the Judge at the hearing.

Who can apply

Either party to divorce proceedings may apply for MPS. MPS is meant for a spouse’s own benefit, not for the children’s. There are restrictions on the court’s jurisdiction to make interim child maintenance orders, where the Child Maintenance Service have fill jurisdiction in resect of the level of maintenance.

When to apply

An application for MPS may only be made in proceedings if a petition for the divorce has been issued.

Application

The Family Procedure Rules govern applications for MPS namely FPR 9.7 and Part 18 procedure. If the application is made in the course of existing proceedings, the application is on Form D11, accompanied by a draft of the order sought. An application for MPS is an application for a financial order which can be made on Form A at the start of proceedings although this may different in local Courts where a separate application will be required.

Evidence in support

If the application is being made before Forms E have been filed, the applicant needs to file and serve a statement in support which must explain why the order is necessary and give up-to-date information about that party’s finances and prepare budget outlining each particular expense. An MPS budget should focus on the essential. Generally, figures for items such as clothing, accessories and leisure activities should be kept to a modest level. Items such as holidays, funds for car replacement and decoration or repair to property should be excluded.

The respondent must file a statement of means at least 7 days before the hearing and serve a copy on the applicant.

Issues to consider when applying

Time estimate. It is almost impossible to deal with all but the most simple of MPS applications in less than two hours. This means that it is difficult to obtain a quick listing.

Obtaining a listing. If the likely listing is too far ahead, it is possible to consider applying for an expedited hearing. There is the risk of not being heard, but both parties attend and it is likely that some form of compromise may be reached.

Productive use of court time. An MPS application should only be pursued when the court’s intervention is manifestly required. (

MPS application and Financial Dispute Resolution appointment cannot be heard together. A judge at a Financial Dispute Resolution appointment (FDR) cannot hear an MPS application or vary an MPS order therefore it is very important to have the considerations for MPS at the earliest opportunity.

Outcome of the Application

Every case is different however in considering your case the Court will have to consider the principles in a leading case on MPS namely: TL v ML and others [2005] and they are as follows:

(i) ‘reasonableness’ and ‘fairness’

(ii) the marital standard of living

(iii) maintenance pending suit budget which excludes capital or long term expenditure

(iv) the payer’s ability to pay where there was a deliberate non-disclosure

Small money cases

Small money cases are the most difficult to resolve and the costs of the application

are likely to become wholly disproportionate. The court will need to determine how to meet the parties’ bare needs and is likely to take the following approach:

The Court will consider what incomes are available or could reasonably be available.

what are the essential outgoings that need to be met, such as mortgages, rent, utility bills and council tax.

If possible, it will adjust the combined incomes so that the applicant can meet their essential needs.

If the combined incomes are insufficient to meet essential needs, it will consider whether there is any capital or borrowing capacity on either side that would enable them to meet the liquidity shortfall.

If the combined incomes exceed the essential needs, it will consider whether there should be any adjustment to allow the applicant and children to have an equivalent standard of living to the respondent.

Average money cases

In average money cases, a court is likely to take the following approach:

It will consider what incomes are available or could reasonably be available.

It will consider the parties’ interim needs, until trial, excluding capital expenditure.

Courts will often be of the view that it is unfair that one party (usually the lower earner) should be eating into their savings when the other has an income that could and should be paying maintenance however very case will be differ based on facts.

Big money cases

The Courts are very reluctant in granting MPS to parties with substantial resources available to them already. The questions in wealthy cases are likely to refer to the budget submitted in support of the application as such:

  • How much does the applicant need, bearing in mind the standard of living during the marriage?
  • Can the respondent afford to pay ?
Orders

An order for MPS contains provision for one party to pay periodical payments to the other at a specified rate until decree absolute or the petition is dismissed, when the case ceases to be pending. MPS orders may be backdated to the date of the petition, but not before.

After decree nisi, a court has jurisdiction to make an order for periodical payments at the same rate as MPS.

Legal services orders and interim funding for legal costs

Legal services orders

The Applicant must demonstrate the following in his/hers application for LSO:

  • Appropriate legal services and the fact that the applicant would not reasonably be able to obtain appropriate legal services without the Court’s assistance abd LSO.
  • There is no requirement to demonstrate that an applicant cannot obtain public funding.
  • That the applicant cannot reasonably secure a loan to pay for legal services. Under previous practice, producing two negative letters from potential lenders was adequate, although this may not be sufficient at the present.
  • Inability to obtain a charge over property. The applicant is unlikely to be able to obtain legal services by granting a charge over assets to be recovered

How to apply for a legal services order

An LSO is an interim order and a financial order. At FisherWright we will consider to apply for LSO at the earliest opportunity within the proceedings and issue the application in the appropriate format of D11. In some circumstances it is also possible to apply on the Form A, but this must be done at the commencement of the financial application.

It is always good to consider alternative methods of settling the matter, this includes mediation. We are of the view that any steps should be have taken to avoid the protracted litigation, this includes ADR and mediation.

Court’s Approach

The court cannot make an order unless it is satisfied that without the payment, the applicant will not reasonably be able to obtain appropriate legal services for the proceedings. In determining whether the applicant can reasonably obtain funding from another source, the court will be unlikely to expect them to sell or charge their home or to deplete a modest fund of savings.

It is also unusual for the court to fund the applicant beyond the FDR hearing and when grating such order payments in instalments are preferred over lump sums.

LSO applications are complex in nature and it is advisable that you obtain legal advice prior to any applications being issued. At FisherWright we are happy to handle LSO application for you with our in depth advice and outline of options available.