Refusing Mediation

[mumsiepie]

Hi, I need some help here....

I am going through a divorce and thought living with a mean controlling man was bad enough but actually divorcing him is just as hard.

What I need to know is, is it true his lawyer ("top Edinburgh lawyer"!!) has said if I don't agree to mediation I could end up paying my ex's court fees?

I am refusing to go because we had 2 years couple counselling where he was obnoxious and lied all the way through and the counsellor, who is good, could not help us arrive at a point where we were both happy (ex kept saying we could not afford to split up).
Following that we have had two and a half years of speaking through lawyers where every suggestion we have made has come back with the same "You are not getting anything" He has procrastinated and ignored correspondence during this time. He has not paid a penny in maintainance.
It is complicated as he inherited before we met and during our marriage. He is now living in the family home with american girlfriend and we have been in rented for 2 years.
He is a bully and probably has a personality disorder.
I am only giving the barest of facts as it is so complicated, I just need to know if I can be penalised for refusing mediation as they are asking for this now when our court date is coming up in a few weeks and we have already put it off once because of him and I am loath to do so again as we all need closure on this, especially my kids who are devastated to be out of their home in a tiny cold rented house when he is in big warm one.
Would love to know what you guys think!

not sure of rules in scotland (assume you in scotland as you mention edinburgh?)
it does sound jsut bullying and
as far as i know mediation is optional (unless you trying to get legal aid) up til 6 april anyway.

to be honest i would attend one sesion anyway and jsut go with key phrases to use - my exP keps also brinigng up mediation and like you any kind of session with mediator counselor has been pointless.

however i have agreed to go to one session ahead of next hearing - if only so i know what his position is.
and what he prepared to actually discuss -which i expect is not a lot

I think it's clear he wants mediation now as a means of delaying the court date. That isn't what the government meant when they said they wanted couples to have mediation.

The fact he couldn't cope with couples counselling does indicate that mediation wouldn't work. He is bullying you into stopping the court case, in my opinion, so that he stays in his nice warm house for longer.

Are there any lawyers here who would know about this?

definITely keep the court date but having a mediation session doesnt need to stop the court date - rather it could help prepare you more for the court hearing itself as you will know his positon - this is way i see it anyway.

i am not going to withdraw from court hearing - but if by some miracle exP in mediation session can agree with financial separation etc and on the figures etc then it would make court hearing quicker and achieve a result. in my case anyway at this point any agreement reached outside court needs to be signed off by a judge.

in fact judge explained it to him last hearing -that setting dates for next and final hearings didnt preclude mediation in between times but would focus the mind on those dates - which was a good way of putting it i think. (exP was asking judge to order me to attend mediation with him which judge refused to do saying it was voluntary)

sadly however, i think exP just wants to use mediation session to continue his bullying tactics etc. but we shall see.

Thanks to you both for your replies. Atswimtwolengths everything you said was spot on and cestlavielife I think we are maybe divorcing the same man! My ex is a real bully and for the first time, I think, is worried!

I have told my solicitor I am not keen (slight understatement!) on mediation but I will have one or two sessions only if he thinks it would help. Obviously it would help to not pay court fees etc but I just have no confidence mediation will do anything except go over old ground and I will be crying with frustration! Thanks again xx

and on top of all this - i now have my parents (who had been kindly helping mne out with some of the legal costs) saying "isnt it time you just sorted this out in mediation?" "mediation is cheaper you know" .... deep breath... they have not sat in a room with exP and a mediator...

Well maybe they could sit in, cestlavielife? Could you have them there as back-up?

they dont live local - and i wasnt aware you could have extra people in mediation ?

Thanks to you both. I have agreed to mediation but we are keeping the court date just in case!! xx

I don't know about Scottish law, but I don't think it can be that different in terms of how the courts see mediation; so far as I know there is no law in Scotland (or anywhere in the UK yet) which says you MUST mediate or be penalised.

But I second the advice, it is good to be seen to be willing. Then at least you can say, tried it, it didn't work.

It might be worth pointing out your concerns about the whole process and how you doubt that anything can be achieved given his attitude, but that you are of course willing to do anything that might bring an end to the proceedings.

The gov loves and is pushing mediation because it thinks it will be a lot cheaper than litigation. There is certainly a view that you should give it a go, but frankly I don't think it is going to have the results that the gov hopes. There is often a weaker party in this kind of litigation and I think it takes a very well trained mediator to make it work and not allow the more dominant half to bully and take over. And the bully half probably won't listen anyway - at least with a court order they have to listen.

But on balance, I am in favour of anything that means avoiding court as it is so expensive and time consuming.

Mediation isn't the same thing as counseling and an experienced mediator can sometimes defuse the situation after a few sessions so that constructive progress can be made more quickly and cheaply than going through the courts..

There is an element of truth in what your husband's lawyer said. Here in Scotland mediation (and shortly arbitration too by all accounts) is consensual but there is an expectation that divorcing couples attempt alternative methods of resolving disputes. An article in the Law Society of Scotland's magazine recently claimed that collaborative law has become quite popular particularly in Aberdeen. Sheriffs can delay things by referring couples to mediation during proceedings. Refusal to attend mediation without good reason may be taken into account as part of overall conduct when the sheriff considers an order for costs but this shouldn't be a problem as long as you have behaved reasonably.

As far as inheritances are concerned the law in Scotland is straight forward, inheritances aren't matrimonial property. Problems tend to arise though when inherited assets are used to acquire matrimonial property. s10(6) Family Law (Scotland) Act 1985 makes provision for special circumstances and the courts have been prepared to deviate from the principle of a 50:50 split to compensate the party who purchased matrimonial property if it wasn't bought from funds derived from the income or efforts of the parties during the marriage.

Thanks again for advice. I want to show willing even though I do begrudge the extra expense of mediation if we do end up going to court anyway, which I think will possibly happen as he has made it clear I wont get anything as far as he is concerned so unless he backs down in mediation which would be totally out of character.....

Re the inheritence it is complicated. He inherited money which I have accepted is not matromonial property but we were given a house for our wedding/birth of first child, by his dad (who now has dementia). We went on to sell that one and buy another and I have only learned since we split up that the house is in my exh name only.

If it was not for the kids I would have just walked away by now as we have been separated for 2 and 1/2 years....lawyers arguing and ex slowing everything down by not answering his lawyers letters.

Thanks again for advice. xx

Ha Ha Mediation worked and I got a fair share!! Thanks to you all for helping me. xx

Excellent news. Well done!