Should I use mediation for my divorce?

My husband wants to mediate instead of going through a proper court process for our divorce on the basis it will be quicker and cheaper. would there be disadvantages to me in doing so and is a mediation legally binding?

Lauren Evans, a partner and family mediator at Kingsley Napley, a law firm, says your options are not just limited to mediation or court. There are lots of other ways to sort things out when you’re getting divorced. The best option will depend on your priorities in both the short and long term.

Mediation, negotiations via lawyers, collaborative law and arbitration can offer private, less confrontational, quicker and cheaper ways of resolving issues. Many people find these a more positive experience than going to court — not least because they have greater control over the process.

Your husband is right that mediation can be quicker and cheaper, but it isn’t right for everyone and requires both of you to commit time and energy to the process.

Mediation offers the opportunity to find your own solutions in a constructive way aimed at preserving parenting relationships. The focus is on collaborative problem solving. The mediator will build a bespoke process for you and your husband. This could involve bringing your professional advisers into mediation meetings, including company accountants, tax advisers, wealth managers and independent financial advisers.

The aim is to reality-test options and consider financial projections so you can make informed decisions together. You could also bring your lawyer into the process, but that would add another layer of costs you could otherwise avoid.

In contrast, going to court can be a blunt (and expensive) instrument. The judge could impose an outcome that doesn’t work for either of you; and, if you don’t settle along the way, it can take well over a year to get a final decision. The English courts system is in crisis and backlogs are huge.

The family court is also becoming more transparent and, as part of recent proposals, media representatives will be able not only to attend hearings but report on what they see and hear. Starting a court process risks exposing your family and personal information to the public.

Privacy is a huge benefit of mediation. Meetings are confidential and can take place in comfortable surroundings (or in the comfort of your own home online).

All discussions are without prejudice, which means you can’t be held to them later on and this encourages negotiation. The outcome is not legally binding though and is always subject to each of you getting legal advice and converting it into a binding court order.

The main complaints I hear about mediation are about drift and delay (which can also increase costs). If you and your husband want a binding outcome as soon as possible, then you should consider arbitration. Often the extra cost of the arbitrator is outweighed by the benefit of you both being able to move on with your lives with certainty in a set timeframe.

Can we avoid delays in setting up powers of attorney?

My mother is in her mid-eighties and has dementia. Her mental condition has recently deteriorated and my two siblings and I are trying to obtain lasting powers of attorney while she is still capable of consenting. She has previously been the victim of scams.

However, we have heard of delays in getting application granted by the Office of the Public Guardian (OPG) and we’re concerned it could be months before we have the paperwork we need.

Is there a way to speed up the process in urgent cases like ours? If we do put in an application, how do we make sure that it won’t run into any snags? Are there any other ways to obtain similar oversight over our mother’s finances without going through the OPG?

James Cook, a partner at Collyer Bristow, a law firm, says people in similar positions to yourselves are unfortunately experiencing difficulties as a result of the delays with the registration of lasting powers of attorney (LPAs) by the OPG in England and Wales.

Given the current 20-week estimated processing time for applications, the sooner your application is submitted, the greater the chance that the paperwork will be processed before your mother loses capacity. 

The most effective method to avoid unnecessary delays is to ensure that the LPAs have been correctly drafted and executed. The information required for an LPA is not onerous. However, it is common for mistakes to occur in the signing of these documents, such as signing them in the wrong order or in the wrong place.

The documents allow for the inclusion of restrictions and guidance for the attorneys. That said, any such provision should be carefully drafted so as not inadvertently to impact the effectiveness of all or part of the document.

When completing an LPA, we usually advise to elect that the LPA is registered immediately, rather than at the stage the donor has lost capacity. Although not necessarily a concern for this reader, it is prudent for a medical or legal professional to act as the certificate provider so as to mitigate against a potential disagreement regarding the donor’s mental capacity at the time of executing the LPAs.

It is important to note that capacity is not binary under the Mental Capacity Act 2005 and your mother’s recent deterioration will not necessarily preclude her from validly signing an LPA where, at the time of signing, she is able to understand the effect of executing the LPAs and the appointment of her attorneys.

Unfortunately, the OPG does not readily accelerate applications. If an urgent application is required, it would likely be necessary to submit an application to the Court of Protection for a deputyship. This process can be costly and time-consuming. 

Whilst the LPA is being registered, it would be advisable to consider contacting a solicitor to draft a General Power of Attorney (POA) regarding your mother’s financial affairs. A POA will take effect immediately upon execution and will allow you (or the appointed attorney) to manage your mother’s financial affairs. The POA can only be used while your mother has the requisite mental capacity to manage her affairs, however, it may assist in the general administration of her affairs as her condition deteriorates.

It may also be advisable to liaise with a financial adviser to establish joint bank accounts and ensure your mother’s financial security through products such as annuities, which would provide for her needs after she has lost capacity. As you can see, the consequences of incorrectly dealing with this area of law, where an individual is losing or has lost capacity and wishes to give another power of attorney, can be profound.

The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.

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