“Surprising solution to your divorce woes: Why mediating may be your best bet!”

My husband wants to mediate instead of going through a proper court process for our divorce because it will be faster and cheaper. Would there be disadvantages for me in doing so? Is mediation legally binding?

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

Mediation, attorney negotiations, collaborative law, and arbitration can offer private, less adversarial, faster, and cheaper ways to resolve problems. Many people find these to be a more positive experience than going to court, especially since they have more control over the process.

Your husband is correct that mediation may be faster and cheaper, but it is not right for everyone and requires both of you to spend time and energy on 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 create a custom process for you and your spouse. This could involve bringing your professional advisors to mediation meetings, including company accountants, tax advisors, wealth managers, and independent financial advisors.

The goal is to 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 that you could otherwise avoid.

On the contrary, going to court can be a blunt (and expensive) tool. The judge could impose an outcome that doesn’t work for either of you; And, if you don’t reach an agreement along the way, it can take more than a year to get a final decision. The English judicial system is in crisis and the delays are huge.

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

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

All discussions are non-judgmental, which means that you can’t be demanded later and this encourages negotiation. However, the result is not legally binding and is always subject to each of you obtaining legal advice and making it a binding court order.

The main complaints I hear about mediation have to do with drift and delay (which can also add to costs). If you and your husband want a binding result as soon as possible, then you should consider arbitration. Often the additional cost of the arbitrator is outweighed by the benefit of both being able to get on with their lives with certainty in a set period of time.

Can we avoid delays in the constitution of powers?

My mother is in her eighties and has dementia. Her mental condition has recently deteriorated and my two brothers and I are trying to obtain durable powers of attorney while she is still capable of giving her consent. She has previously been a victim of scams.

However, we have heard of delays in granting the application by the Office of Public Guardian (OPG) and are concerned that it may be months before we have the documentation we need.

Is there any way to speed up the process in urgent cases like ours? If we install an app, how do we make sure it doesn’t have any issues? Are there other ways to get similar oversight over our mother’s finances without going through OPG?

James Cook, partner at Collyer Bristow, a law firm, says that people in positions similar to theirs are unfortunately experiencing difficulties as a result of delays in the registration of Durable Powers of Attorney (LPAs) by the OPG in England and Wales.

Given the current estimated processing time of 20 weeks for applications, the sooner you submit your application, the better the chances 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 written and executed correctly. The information required for an LPA is not onerous. However, it is common for errors to occur when signing 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 attorneys. That being said, any such provision must be carefully drafted so that it does not inadvertently affect the effectiveness of all or part of the document.

When completing an LPA, we generally recommend choosing to have the LPA register immediately, rather than at the stage when the donor has lost capacity. Although not necessarily a concern for this reader, it is prudent to have a medical or legal professional act as the certificate provider to mitigate a potential disagreement regarding the mental capacity of the donor at the time of performing the LPAs.

It is important to note that capacity is non-binary under the Mental Capacity Act 2005 and your mother’s recent impairment will not necessarily prevent you from validly signing an LPA where, at the time of signing, you can understand the effect of running the LPA. and the appointment of her lawyers.

Unfortunately, the OPG does not easily speed up applications. If an urgent application is required, it would probably be necessary to apply to the Court of Protection for a Deputy. This process can be expensive and time consuming.

While the LPA is being filed, you may want to consider contacting an attorney 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 your designated attorney) to manage your mother’s financial affairs. The POA can only be used as long as your mother has the necessary mental capacity to handle her affairs; however, she can assist in the general administration of your affairs as your condition deteriorates.

It may also be advisable to contact a financial adviser to set up joint bank accounts and ensure your mother’s financial security through products such as annuities, which would cover her needs after she has lost capacity. As you can see, the consequences of mishandling this area of ​​the law, where an individual is losing or has lost capacity and wishes to grant another power of attorney, can be profound.

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 results arising from reliance on answers, including loss, and exclude all liability.

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