By John Loram | Mediation | November 2022

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Is mediation legally binding?

One of the most commonly asked questions in family mediation is whether it is legally binding. To cut a long story short,no, a family mediation agreement (what mediators call a Memorandum of Understanding) is not legally binding.

However, like many areas of family law, it is not that simple. Whilst the mediation agreement itself is not legally binding, it is possible and easy to make a mediated agreement legally binding.

In this article, we’ll help you understand the legalities involved with mediation, and how to make mediation agreements legally binding.

What is a Memorandum of Understanding?

A Memorandum of Understanding is the document that sets out the joint proposals that the participants have reached together with the help of the mediator in mediation. This document is written up by your mediator and on its own is not legally binding.

The mediation agreement as set out in the Memorandum of Understanding gives the participants an opportunity to reflect on the proposals and the time to take legal advice before they make it legally binding.

Making a mediation agreement legally binding is fairly straightforward. By reaching an agreement in mediation, all the hard work has been done. To make the agreement legally binding, there are a number of options, including asking the court to make it into a court order.

How the participants make the agreement legally binding is a matter of choice, and will depend primarily on the subject matter of the dispute and on the levels of trust between them. We discuss this in more detail later on.

Why isn’t family mediation legally binding?

Some might question mediation’s ability to deliver effective outcomes if it is not legally binding, but this is actually one of the greatest benefits of mediation.

One of the advantages of mediation is that the conversations are, to use legal jargon, “without prejudice” so participants cannot be pushed into an agreement that they aren’t sure about. Mediation offers a flexible and open forum where the participants can brainstorm ideas in a way that is free of judgement. As a result, participants are more likely to consider and suggest alternative settlement options that could help the dispute move forward.

The mediator helps both participants collate all the relevant financial information before giving them the space to explain their concerns and priorities and then exploring different options for settlement. Mediators are experts at finding areas of consensus and developing these to arrive at an overall settlement.

Consequently, when participants wish to make the agreement legally binding after completing mediation, then they are doing so voluntarily and having had the opportunity to take legal advice. Knowing that they will be fully informed of the proposed agreement before it becomes legally binding is extremely reassuring for participants who are concerned that they might be less astute than the other participant, especially in respect of financial matters.

Making a family mediation agreement legally binding

In the UK, family mediation is not legally binding. However if you do wish to make a mediation agreement legally binding, then this can be achieved in a number of ways, including using a court order. This is often done in cases of financial and property arrangements, and sometimes in cases of child arrangements.

Parenting plans

Family mediators can help you come to an agreement on child arrangements if you and your partner have separated. The mediator will not take sides but will help you form an agreement between you on how you’ll continue to care for your children. For example, who they live with, when they see each parent, holidays and Christmas arrangements, child maintenance payments, and the details of other types of contact such as video calls.

Whilst family mediation agreements themselves are not legally binding, the topic can become quite complex when considering what makes a mediated agreement ‘legally binding’.

Parenting plans are a perfect example of this complexity. A parenting plan is prepared by a mediator for participants setting out the arrangements for their children and their joint responsibilities as parents, as agreed through the family mediation process. This plan is signed by the parents once they’ve had the chance to reflect and take advice and, once signed by both of them, is ‘legally binding’ as it is now a legally binding contract.

This is a signed contractual agreement, meaning that if one parent was to go back on the agreed terms, the other parent could make an application to court and show the signed agreement as evidence of what has been agreed.

In cases where children are involved, the court will always of course make decisions based on what is best for the child, but are unlikely to deviate from the original mediated parenting plan unless there’s a very good reason for it.

As a result, a signed parenting plan carries for most parents a sufficient level of legal validation, as the parents understand that this can be used as viable evidence in court if one parent were to deviate from the agreement.

Child arrangement orders

Whilst a parenting plan agreed through child mediation is usually enough for most parents as it carries a degree of legal validation, a few parents choose to make the agreement into a court order through a formal court application process.

If both parents agree, they can present their parenting plan agreed in family mediation to the court and have the terms made legally binding in the form of a child arrangements order.

A child arrangements order is a legally recognised document that confirms your agreement and formalises the specific details of the parenting plan. It is a more formal document in the way it is phrased because it is a court order and needs to follow legal terminology but will do exactly the same as the parenting plan, i.e. outline where the children will live and how much time they’ll spend with each parent. It can also cover specific aspects such as whether they’ll go to school, or what the arrangements will be during school holidays and Christmas.

The child arrangement order is usually drafted by a solicitor or legal advisor, using the parenting plan as the basis for the formal legal document and the solicitor can also help you make your application to court. If the court believes the agreement is in the child’s interest, then they will approve the consent order to make it legally binding.

Financial and property arrangements

Many separating couples use mediation as a means to come to an agreement on financial or property arrangements. Unlike child arrangements, financial agreements are “once and for all” settlements. As a result, most separating couples want their financial mediation agreement turned into a legally binding consent order. The good news is that all the hard work has been done in mediation, and the agreement can be easily made legally binding.

Turning the financial mediation agreement into a legally binding document is straightforward; this can be done simply by obtaining a financial consent order from the courts.

A financial consent order is the court’s ratification of the mediated agreement and formalises the legal agreement that details how you and your ex-partner will divide up your finances and assets, such as pensions and property. The consent order can only be granted if you are getting a divorce, and you can only apply for this once you have received your conditional order (previously known as the decree nisi prior to April 2022).

Obtaining a financial consent order provides reassurance that the terms you have worked so hard to negotiate are set in stone, ensuring security for your future and clarity on your financial situation following the divorce.

When the participants reach joint proposals in mediation on all the financial aspects, the mediator prepares a Memorandum of Understanding and a Financial Statement. The Memorandum sets out in detail the proposed agreement in layman’s terms, so the clients and their solicitors understand exactly what the terms are for the intended agreement. The Financial Statement sets out a comprehensive picture of the participants’ finances - their property, bank accounts, other investments, debts and pensions as well as their income.

Using these documents, the couple can ask a solicitor to draw up the formal legal paperwork that is needed to go to the court. These legal documents are called the Statement of Information and the draft Consent Order, and essentially repeat the information provided in the Financial Statement and Memorandum of Understanding - using legal phrasing to make the document acceptable to the court for the purposes of obtaining a court order.

If you are unsure about how to negotiate your finances with your ex-partner, mediation can help. Your mediator can also prepare the paperwork that you’ll need to obtain a consent order once a financial agreement is met, and produce a Financial Statement that collates all the important information about your and your ex-partner’s finances, assets, liabilities and income.

Explore our financial and property mediation services to find out more, or get in touch with a mediator.

Can a mediation agreement be overturned?

Since a mediated agreement is not legally binding until it is made so in one of the ways outlined above, it is possible for a family mediation agreement to be overturned or challenged. However, this is unusual especially if the participants have had the opportunity to take legal advice alongside the mediation process, which is something mediators will recommend when appropriate. The participants will have worked extremely hard and in good faith to get to a mediated agreement. Why would they not wish to turn it into a binding watertight agreement?

One reason is if the proposed agreement is manifestly unfair to one of the participants. Another reason is if what is being proposed is not something the court has the power to order. Another is if the proposed agreement is not “clear and certain” which are the prerequisites of any legal agreement.

Choosing the right mediator is therefore important if you want to avoid the pitfalls of these kinds of situations. All the mediators at Mediation First are accredited by the Family Mediation Council and almost all have a legal background as lawyers. They will give you lots of legal information and make sure that you take into account all the relevant factors to ensure you get a really good understanding of what the law considers relevant and important in reaching a fair outcome.

Move forward with mediation

Family mediation is one of the most cost-effective and inclusive ways to help disputing parties reach an agreement on parenting, financial, separation, or other family matters. It provides a clear pathway to help divorcing and separating couples reach an agreement, and then to have that mediated agreement made legally binding including by way of court order.

Family mediation is much less costly than using a solicitor to fight your case, and also gives you more control over the outcome of the agreement. It can also be completed from the comfort of your own home with online mediation.

Family mediation is much less costly than using a solicitor to fight your case, and also gives you more control over the outcome of the agreement. It can also be completed from the comfort of your own home with online mediation.

To find out more, explore our family mediation services, or speak to a family mediator here at Mediation First.