Next steps following a successful mediation
25 January 2024
Aim of Mediation
The aim of financial mediation is to reach a set of proposals for settlement of the matrimonial finances, including claims relating to both capital and income.
Once financial disclosure has been exchanged your mediator will facilitate and support discussions to help you identify the financial arrangements that would most benefit you and your family. In a successful mediation, you will come up with a set of proposals for how capital assets will be divided between you, and how you will both meet your day-to-day income needs.
Your mediator will prepare outcome documents, which record not only the proposals but also the motivation behind the decisions you have made.
The Open Financial Statement is a document which records a summary of the financial disclosure you provided, including assets, liabilities and income streams. Essentially, this is a document which records the facts on which your proposals were based. Financial disclosure in the mediation process is known as ‘open’, which means that it is factual information which can be relied on and referred to outside the mediation process.
The Memorandum of Understanding will record the financial proposals you have formulated in the mediation process, together with a little background and explanation that will help your family lawyer understand how you reached this point. The Memorandum of Understanding, like all discussions in mediation, is without prejudice; this means you cannot be held to it. This is very important, as most people will want to take the Memorandum to their family lawyer to take legal advice on the proposals before they decide if they are happy to be bound to the same.
The vast majority of proposals which are reached in mediation are implemented without further discussion; however, there are occasions, following further thought or legal advice, when someone may want to re-visit an aspect of the proposals. If this is the case, you can return to mediation to discuss the issue with the support of the mediator and an amended without prejudice Memorandum would then be produced for consideration by each of you and your family lawyer, if you have one.
Once both parties have had the opportunity to take legal advice, if they want to, and are content to be bound to their proposals, one or both parties usually instruct their family lawyer to prepare a Consent Order reflecting the same. The Consent Order is lodged at Court for approval and makes the proposals legally binding on you both.
When lodged at Court, the Consent Order usually indicates that the settlement was reached using mediation. It must be accompanied by a Form D81 – a statement of information for a consent order, which your family lawyer may be able to complete using the information in the Open Financial Statement, if it is still up to date when the Consent Order is lodged at Court.
The Consent Order can be lodged at Court at any time after the Conditional Order in the divorce proceedings has been pronounced. Only once the Consent Order has been approved and sealed by a Judge does the financial settlement become legally binding.