A Solicitor Mediator is able to prepare a Financial Consent Order following a successful mediation.
After a successful mediation on financial issues, there is still legal work to be done
At the end of a successful financial mediation the mediator will prepare a document called the Memorandum of Understanding, which sets out the parties proposals for a financial settlement. At this stage the proposals are not a binding agreement. In order to turn the proposals within the Memorandum of Understanding into a binding agreement, the couple need to instruct solicitors.
Each party will have their own solicitor. One of the solicitors will draft a Financial Consent Order. They will also prepare the other paperwork which needs to be sent to the court at the same time. There is a joint summary of financial information. This is to give the Judge sufficient information to decide whether the contents of the financial consent order are reasonable. The making of a financial order is a judicial discretion. If the Judge is not satisfied that the proposed Order is sufficiently fair, the judge will reject it. Sometimes the judge will ask for more information before deciding to approve or reject a draft Consent Order.
Each of the couple will also send to the court a formal application for financial relief – so that the various claims can be dismissed as part of a clean break.
The party whose solicitor does not prepare the draft order would normally instruct their own solicitor to advise them on the contents of the draft order, before the paperwork is sent to the Judge.
There can often be what seems like a duplication of work
This process this process does mean that there is a degree of duplication of work. When the mediator prepares the Memorandum of Understanding, this can be an involved piece of drafting which can take as much time as it takes to draft a financial consent order.
Mediation is a good choice for separating couples who are able to enter into sensible negotiation and who want to limit the overall cost of their divorce. Obtaining independent legal advice in support of the mediation process – as necessary, is also essential to enable the couple to make informed choices.
After mediating, can I draft a financial consent order?
I am a mediator who is also a divorce solicitor. I regularly get requests from the parties in mediation, who do not wish to take legal advice or instruct separate solicitors to draft a court order reflecting the agreement they have reached as a consequence of mediation.
Guidance from the Solicitors Regulation Authority
The Solicitors Regulation Authority have issued guidance on the circumstances in which I can accept instructions as a solicitor from both parties to prepare a draft Financial Consent Order, after a successful mediation.
The Solicitors Regulation Authority Advise that I am able to do by way of a new restricted/limited retainer once the mediation retainer is complete
The Solicitors Regulation Authority recognise that there are obvious benefits to clients in them being able to instruct me as a Solicitor to prepare a Draft Financial Consent Order.
The Solicitors Regulation Authority have given guidance which says that in limited circumstances – where I am not advising my mediation clients as to their legal position – but simply reflecting the agreement they have reached within mediation, it may be possible to agree a very specific and defined retainer which will allow me to act for both clients as a Solicitor.
I would no longer be acting as a Mediator. The Mediation will have finished.
The SRA rules allow me to be instructed as a Solicitor.
What I should bear in mind when deciding whether I can act as a Solicitor after mediation
The SRA advise that I should bear in mind that it is would be a joint retainer and contact with either of the parties must be transparent to the other.
Before making the decision to accept the new retainer, I need to bear in mind Principle 1 of the SRA Code of Conduct ( administration of justice) and Principle 6 of the SRA Code (public confidence). It would not be appropriate for me to act, if to do so would put me at risk under either principle.
I am likely to be at risk if I am not satisfied on the following:
- there has been no undue influence or duress
- there is no imbalance of bargaining power
- there is no vulnerability on the part of either client
- both parties have been advised to take legal advice, have taken legal advice separately or have been clear they do not wish to take legal advice
- both parties understand the limits of my agreed retainer, in that I will not be providing legal advice and are simply reflecting the agreement they have freely reached.
- both parties have given clear written consent
- the court order is drafted for the parties to file with the court and I do not place yourself on the court record as acting.
Everyone needs to be clear – but it is not suitable for me to act in all cases
I also need to be satisfied, taking into account all the circumstances, that having completed the retainer to provide mediation services, it is reasonable for me to take on joint instructions to draft the court order. This will require very clear terms, understood by the parties and will not be suitable for everyone. I should decline the instructions if you have concern about potential unfairness to either party.
As the cost of my time will be shared between the couple there will obviously be a cost saving. In appropriate cases, it is obviously preferable to my clients for me to be able to draft a Financial Consent Order rather than a Memorandum of Understanding. The ability to do this (even if not taken up by clients) is clearly a positive reason for separating clients to instruct a mediator who is a practising divorce solicitor, rather than a mediation service where the mediators are not practising solicitors or have no legal qualification at all.
It is helpful to know that the option of instructing me to prepare the Consent Order is available before mediation starts
A decision on whether or not to instruct me to prepare the Draft Financial Order would be made at the end of the mediation. However it is something to bear in mind when choosing which mediation service to instruct. If you would like to arrange a Mediation Information and Assessment Meeting with me to discuss the suitability of mediation in more detail, then please do not hesitate to give me a call.
I am a Divorce Solicitor based in Honiton. We also act for clients in Taunton and Exeter. I and (Family Mediation Council) FMC accredited mediator. I am a member of Resolution and the Chair of the Devon Region of Resolution. This year I am celebrating 20 years as a Family Mediator.