It is important to note that an agreement reached in mediation is not final. Each party may then seek legal advice upon the terms of the agreement (as they can at any point in the process). Once again, if the agreement is regarding a financial settlement the lawyer will require details of both parties’ means before they can advise. As indicated above, the lawyer should advise not only upon whether the agreement is fair but also upon whether its terms are complete and can be legally implemented.
If, after taking advice (or even without taking advice), either party wishes to amend the agreement or withdraw from it completely, they may do so. If they do not withdraw completely then further negotiations may take place, with or without the mediator.
Once an agreement has been reached and confirmed by both parties, after they have had a reasonable opportunity to take legal advice, then the agreement will have to be implemented. How this happens will depend both upon the nature of the agreement, and whether or not there are court proceedings:
• If the agreement relates only to arrangements for children and neither party has applied to the court for a residence or contact order (or any other order relating to children), then no steps are required to implement it, although if there are no divorce proceedings the terms may be included in a separation agreement – see the Introduction to this BLOG.
• If the agreement relates only to arrangements for children and either party has applied to the court for a residence or contact order (or any other order relating to children), then the agreement may be incorporated into a court order if the court considers that an order is required, for example to ensure that the parties keep to the terms of the agreement. Often, however, the court will not consider that an order is required – the no order principle – see Chapter 2.
• If the agreement relates to finances and property and there are no divorce proceedings, then it should be incorporated into a separation agreement, as mentioned in the Introduction.
• If the agreement relates to finances and property and there are divorce proceedings, then it should be incorporated into a consent court order, as explained in Chapter 4.