Are Mediation Agreements Binding?

Divorce often conjures up images of bleak courtrooms, stern judges, and blazing arguments. Thankfully, in reality, the majority of couples are able to come to an amicable divorce settlement without going to court. Family mediation is a method of Alternative Dispute Resolution (ADR) and is now one of the most popular ways divorcing couples choose to facilitate their separation.

Mediation can be used to come to an agreement with your ex-partner about matters such as the division of money and assets, spousal maintenance and child maintenance, and arrangements for children. A qualified mediator will also be present to guide and facilitate your conversation, but they will not give you legal advice, take sides, or make any judgment on your situation. The resulting agreement will all be down to you.

The mediation environment tends to encourage collaboration and helps you avoid court proceedings which can be stressful and expensive. However, the question many people immediately have is, if you don’t have to go to court, is the agreement made during mediation legally binding? How can you ensure your ex-partner isn’t simply going to back out at the first opportunity?

Are divorce mediation agreements legally binding?

Your mediation agreement will not be legally binding by itself. However, a specialist family law solicitor can help you make it legally binding.

Once you and your ex-partner come to an agreement, your mediator will put it in writing and check that you fully understand what it means.

If you and your ex-partner are both happy to follow the agreement, your family law solicitor can apply to court for a Consent Order to make it legally binding.

If the judge believes the agreement is fair to both you and your ex-partner, they will make the Order. They may ask you to provide some more information, for example, about your finances, before they are satisfied the agreement is fair. It is therefore very important to be open and honest during mediation to prevent any issues arising later on.

It is highly unlikely you will need to go to court to get a Consent Order, as it is mainly a paper exercise which can be completed by your solicitor.

Can I change my mind after making a mediation agreement?

You can change your mind about an agreement made during mediation so long as it has not been made legally binding with a Consent Order.

If you do change your mind, for example, because your circumstances have changed and you believe it is no longer fair, you can go back to the mediator and agree an amended agreement.

Once a Consent Order has been made, both you and your ex-partner have to follow it. However, if there are genuine reasons you cannot or do not want to follow the Order, a mediator can help you come to a further agreement and you may be able to apply to court to amend the Order to reflect your re-negotiated agreement.

What happens if my ex breaches the Consent Order?

If your ex-partner fails to follow the Consent Order, for example, by failing to make spousal maintenance payments, you can apply to court to enforce it. You will need to prove the breach for the court to consider enforcing the Order.

On some occasions, there may be a good reason for the breach, for example, if your ex-partner has been made redundant and can no longer afford the spousal maintenance payments at their current level. It is worth trying to communicate with your ex before resorting to court to see if you can resolve the issue informally.

Mediation can also come in handy here – if your ex is unable to follow the Consent Order for a good reason, consider whether you can come to a further agreement with the help of a mediator. You can then apply to court to change the Consent Order, saving you the time, costs, and stress of challenging your ex in court.

Do you need advice about divorce mediation?

At Atkins Hope, we have qualified family mediation solicitors to help you find positive solutions to a wide range of family law issues. With years of expertise behind us, we can give you the best possible chance to achieving a good result swiftly and cost-effectively, avoiding the costs and stress of lengthy court proceedings. We can also provide advice on a range of other options if it turns out mediation is not right for you.

Our Head of Matrimonial Law, Juliet Adelman, is a qualified mediator. She is also a Resolution-accredited specialist in Child Abduction and Matrimonial Finances (Advanced) with specific expertise assisting clients with complex assets.

For further information, get in touch with our family mediation solicitors in Croydon, Medway, Blackheath and Guildford today.