A matrimonial dispute - is mediation an alternative?


The short answer is, yes. It just must be better. Never mind that the recent estimate that, on average, divorce litigation in Northern Ireland costs £44,000 per case, the benefits are significant beyond that.

•  Parties can avoid the emotional difficulties and stress of a hearing. There is an old expression about when you “throw enough mud around something sticks”. Well what can “stick” (or stay with parties) well after the hearing day, is the hurt. The allegation that was said in anger, the tension from the sense of confrontation, the things that were not explained, the messages that lawyers don’t deliver properly (or well). Or sometimes, it’s just what wasn’t said that “haunts” parties for years after proceedings conclude.

•  Many parties don’t appreciate how quickly costs can escalate. Letters written, interlocutory applications made, consultations, of course they all are legitimately billable items. It’s hard to keep up sometime, and costs only go one way once proceedings are initiated.

•  Judgement can be placed in the public domain. Judgements are often published and retained, maybe even on the Courts Service website. Even if they are anonymised, which in Northern Ireland they will always be, family friends and neighbours can often work out who’s dispute it was. Parties names will always be on the Court list in ancillary relief cases. Who reads court lists? Well, you could be surprised!

•  Your evidence may not be accepted. In an adversarial process, there is a likelihood that if one asset isin dispute, the Judge will side with one party over the other. Now, every lawyer will explain the standard of proof to their client, but the reality can be that the Judge preferred the other side’s version of events over yours. That can be difficult to process, immediately or in the future.

•  Loss of control at hearing. Judges generally don’t want to decide who keeps what after a divorce. They much prefer the parties to decide. Judges, when agreement is not possible, are sometimes compelled to take a “blunt” approach to assets often based on contribution and intentions. Whilst every matrimonial lawyer has a story to tell about the seemingly low value and irrelevant item that caused the whole agreement to tumble over, these small seemingly worthless items can have huge emotional importance to parties. Who better to sort these things out, regardless of the financial value.

It is the “least, worst answer”. This is sometimes the best outcome after a divorce and division of assets, but this need not be the way parties need to leave the division of their assets. Removed from an adversarial process and without the stress of the Courtroom, parties can find the best answer… for both of them.

Mediation has been overlooked as an alternative to litigation in ancillary relief claims for too long. If you are considering divorce, or even if you have already issued proceedings and want talk about options, please contact us.

Written by Michael Bready

Michael Bready is a barrister, a qualified and practicing mediator since 2010 and a member of the Chartered Institute of Arbitrators. Michael mediates in all areas and regularly contributes to training and increasing awareness in the mediation field. Michael has a very broad range of experience as a mediator from Commercial/Civil litigation, Wills disputes, family disputes, to professional negligence litigation.


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