By John Loram | Mediation | February 2023

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Going to court after mediation: what happens next?

Mediation is a process that helps individuals find a mutually agreeable resolution for their disputes. It works by helping both parties communicate constructively, obtain all the relevant information, and understand and explore the options available to them - so they can find a solution that works best for them.

Whether an agreement has been reached or not, many people have questions about what happens after mediation.

Whilst your mediator will fully explain the next steps for your specific family mediation process, this guide provides an overview of what you might expect. It covers when you might need to speak to a solicitor or start court proceedings, as well as what the general next steps may be.

Possible mediation outcomes

There are three main outcomes that come as a result of mediation:

• Agreement
• No agreement - but a willingness to continue negotiations
• No agreement - and no willingness to continue negotiations

1. Agreement

The most desirable outcome of any kind of family mediation is of course a final agreement. To reach an agreement in mediation, both sides will have to come to a mutual understanding and agree on an outcome that both participants are willing to move forward with.

It is likely that both sides will have to compromise in certain areas if they are going to find a consensus. The mediator will help the participants explore the different options available so that a way forward can be found.

2. No agreement - but ongoing negotiations

In some cases, an agreement is not reached in mediation, but both participants still hope to find a settlement by negotiating between them rather than relying on a judge to determine the outcome of their dispute. The door to mediation remains open all the way up to a final hearing in court and often participants return to mediation at a later date.

Obviously, it’s preferable to keep costs to a minimum by mediating right from the start but sometimes mediation only becomes attractive to the disputing couple further down the line. Mediation is not the only forum for negotiation. Many couples will keep trying to find a solution between themselves outside of mediations. Solicitors will also try to negotiate on behalf of their clients after.

Where a dispute cannot be resolved through mediation, mediators may suggest the participants to contact their lawyer or advocate to receive a legal directive on what might be considered fair in their situation. Participants may want to return to mediation after receiving this legal information.

Another option is to return to mediation with your solicitor in attendance, allowing for legal advice “on tap”. More and more mediators have adopted this hybrid approach to mediation, allowing for the best of both worlds - where the participants have the guidance and assistance of counsel, whilst still having the mediator facilitating negotiations.

3. No agreement - and negotiations break down

It’s always difficult when negotiations reach an impasse and one or both of the participants decides that further compromise is not possible and they have no alternative but to ask a judge to decide the outcome. No one takes this step lightly but at least the participants can be reassured that they have tried to find a settlement through mediation. Applying to the court will take many months and may cost a lot of money but it has the singular advantage that a decision will be made, for better or for worse which both participants will have to abide by.

Mediation documentation: what you’ll have upon completion of mediation

There are different types of documents that come as a result of the mediation process - depending on the type of mediation and how far mediation has progressed.

Outcome Statement or Parenting Plan

An Outcome Statement or Parenting Plan is a document that essentially outlines and summarises the agreements that have been reached between two parties in mediation. These documents are applicable to child mediation cases.

Although it is possible to ask the court to confirm the terms of your agreement in what is called a ‘consent order’, most parents are content to rely on the document prepared by the mediator as a record of their proposals, signed by both of them to create a written agreement.

An MOU (Memorandum of Understanding)

A Memorandum of Understanding (MOU) is written up by the mediator for financial and/or property cases, and details what has been agreed upon during mediation. Both parties will get a copy of the MOU, and you can make the document legally binding by applying for a consent order through the court.

Open Financial Statement

An Open Financial Statement is also provided in financial and property mediation cases. This document contains a record of the participants’ financial information, based on the financial documents provided by each party. This includes statements of jointly and individually held assets, liabilities and incomes, for example, from which the mediator puts together a schedule of financial information as it is obtained.

The Open Financial Statement will form the basis of discussion throughout mediation, as you’ll be discussing how finances, property and other assets are to be split.

Mediation Summary document

A Mediation Summary document is provided by the mediator in cases where there has been no or limited agreements. This is only applicable to financial cases, where for example the participants have explored two different options for settlement, but have not been able to reach a consensus. After this point, the next step is usually to take legal advice.

The Mediation Summary document can be shown to the solicitor alongside the Open Financial Statement, and will help the solicitor gain a better understanding of the situation and the options you have explored so that they can give advice about the different options.

Potential next steps once mediation has concluded

There are a number of different steps that can be taken after the mediation process, depending on whether you’ve made an agreement or not. The most common steps after mediation has concluded are to:

1. Proceed with mediation agreement without taking further action
2. Apply to the court for a consent order to confirm the agreements reached in mediation
3. Where mediation has broken down, apply to the court to ask a judge to resolve the dispute
4. Continue to negotiate outside of mediation

1. Proceed with mediation agreement without taking further action

The main aim of mediation is to help people move forward in their lives and minimise ongoing conflicts. In cases involving child agreements, it’s possible to proceed with the final agreement without taking further action. As explained, parents will have an Outcome Statement or Parenting Plan outlining the details of what has been mutually agreed which they often sign to confirm their agreement. Given the time it takes to apply to the court, it’s uncommon for parents to ask the court to confirm the Parenting Plan in a consent order.

2. Apply to the court for a consent order to confirm the agreements reached in mediation

However, mediation agreements relating to finance, property or other assets are generally taken to court and turned into consent orders. Once the consent order is approved by the court, then the agreement is legally binding and watertight.

This is advisable in financial cases so that neither party can come back and alter the agreement at a future date. For example, if one of the parties inherits money some time after the agreement, then the other party could potentially come after the inherited money by making an application to the court. If, however, a consent order has been submitted to and approved by the court, then that would draw a line under financial matters and neither person could go after another ‘bite of the cherry’ later on.

3. Where mediation has broken down, apply to the court to ask a Judge to resolve the dispute

If an agreement has not been reached in mediation, the parties do have the option to take the matter to a solicitor or the court. This route is usually a last resort, as it will prolong the dispute further but it will mean that the matter is decided by a neutral third party - the judge - thereby bringing the matter to an end.

Solicitor and court fees can be expensive, so, where an issue can be resolved in mediation, it is usually more cost-effective than if the issue was to be drawn out across lengthy legal proceedings.

4. Negotiate outside of mediation

Another potential next step following mediation is to attempt to negotiate outside of the mediation process. However, if an agreement was not possible through mediation, it’s unlikely to be successful via negotiation through some other route.

Speak to a mediator

If you are experiencing a family dispute, mediation can help. We help people work towards a mutually agreeable resolution for a range of issues, including divorce, child arrangements, financial agreementsand more. We guide you through the process and help you understand all of the options available to you.

Speak to a mediator to find out more and get started.