Mediation and divorce: Two myths that could cost you

Estimated reading time: 8 minutes

Last updated May 2026

Mediation has never had a higher profile in divorce proceedings. The Family Mediation Voucher Scheme, which provides eligible families with a government contribution of up to £500 towards the cost of mediation, has continued into 2026, and the courts now require parties to attend a meeting at which non-court dispute resolution options are considered before an application to court can be made, unless exceptional circumstances apply. The direction of travel is clear: mediation and divorce are increasingly spoken of in the same breath. But does that mean mediation is the right answer for everyone? In our experience, not always. And there is a second myth worth addressing at the same time: that an equal split of assets is automatically the fair outcome. Both assumptions can cost you.

Is mediation and divorce always the right combination?

Most of us would endorse the “anything but going to court” approach in relation to family law issues. There are few situations in which it can be seen as the optimum way of resolving a dispute. However, equally, mediation cannot, in my view, be seen as a panacea. There are certainly situations which arise regularly in my experience where mediation can paradoxically be highly counter-productive.

Allied to this is the view prevalent among many people, that an equal division of all the assets on divorce in respect of financial claims is always the way forward, the just outcome. Well, what could be fairer than splitting things equally, right?

The 50/50 myth: why an equal divorce financial settlement is rarely fair

This myth, much like the myth of a common law spouse, is just that: a myth. Why are we mentioning these two things in the same breath? Well, quite simply, the prevalence of the notion of an equal split of assets, combined with the encouragement of the legal profession to resolve cases in any way other than via a court-based settlement, or for that matter, an argument provoking, contentious, hate-seeking family lawyers, can create a perfect storm of unfairness (OK, we’re exaggerating for dramatic effect).

Half of what, exactly? The pension problem

One related question is half of what? We routinely see instances or anecdotes, which suggest that it's only right to share half of what one party feels inclined to share. Most often, this means ignoring a pension, it’s in my name after all, and splitting what’s left.

Why this paradox, we hear you saying? Well, in our view, it is simply this: the assumptions and bias that parties hold are incorporated in any negotiated process. One effective way to counter this is to employ someone who cares more about the law and representing the party in a way which although intrinsically adversarial, draws the right balance between fighting the client’s corner and a sensible, prudent approach. A family solicitor often fits the bill, especially one who is solution-focused.

We have had many situations in which agreements reached through mediation have been brought to us for advice. The client produces the mediation memorandum, together with some financial information used as the basis for the settlement and asks me whether this is fair. At this point, we are reminded of the famous dictum from the court of appeal that fairness is much like beauty – in other words, it is in the eye of the beholder.

To some extent, that is the case in relation to financial settlements, but the law is slightly more objective than the various notions of beauty that we may hold. What needs to be said loud and clear is that there are very few instances where an equal division of all of the assets is either appropriate, let alone fair.

Why needs usually drive the outcome, not equality

The chief reason for this is simple; in the vast majority of cases, the parties' needs predominate. Most families approach financial settlement from a position of inequality. The evidence on this point is legion, and the statistics bear out one point: women tend to do worse than men in the long run following a divorce. That is, unless, you believe Barry Bloke in your local pub wailing about how he got screwed on his divorce. Research shows clearly, women tend to sacrifice their careers when they have children. This impacts their earning capacity, mortgage capacity, pension contributions, and so on. When a marriage in which the responsibilities have, by agreement, been shared in a traditional way, whereby one party stays at home and the other maintains a career, on divorce or separation, the parties are left in profoundly different situations. This is the simple truth.

This means that on divorce, when we are looking at a negotiated settlement, one party has less and therefore needs more. The discussion then centres on what exactly are a party’s needs. Often, we are reminded of the game show, The Price is Right, one side saying “higher, higher”, the other side “lower, lower”. This impacts all aspects of the case, whether it be housing needs, income needs or how a pension should be shared.

This rather unedifying spectacle can be mitigated with sensible legal advice. The question is how and when to obtain that.

How a solicitor can support your divorce mediation

We often advise clients attending mediation “in the background” so to speak. This helps because when there is an inequality in terms of knowledge, expertise and dare we say, the emotional/negotiation dynamic which may exist between the parties, mediation cannot in and of itself mitigate this, and one party may be applying pressure on the other to go to mediation. Often support is needed in the background from an experienced professional who can see the issues and facilitate a settlement without directly engaging in the mediation process.

So perhaps the way forward is not to see instructing a solicitor and mediation as an either/or, but simply a supplement to a resource which hopefully enables the parties to reach a settlement. However, it should also be borne in mind that peace at any price is not the outcome which, in the long term, is likely to ensure both parties are in an optimum position.

Getting the balance right

It is for each person to determine for themselves a balance between, on the one hand, the advantages of an early settlement of the financial claims and on the other, the long-term effects of say, foregoing a pension sharing order because that is what we agreed at the kitchen table and told a mediator it was so. Speaking to a solicitor about your case in advance of a mediation appointment can really help to clarify this, and the support which they can give during the process, particularly when financial information is exchanged, can play a vital role in ensuring your settlement is one that meets your needs and works in the future.

If you would like to know more about sorting out your finances, please contact one of the team to discuss this further. Call us on 0208 4579 5360 or complete our contact form for a call back.

Frequently asked questions about mediation and divorce

Is mediation always the best approach to divorce?

Mediation can be a useful and cost-effective way to resolve financial and children matters on divorce, but it is not suitable in every situation. It requires both parties to be willing to participate, and it may not produce a fair outcome where there is domestic abuse, a significant power imbalance, or a substantial difference in financial knowledge between the parties. In most cases, taking independent legal advice alongside mediation is advisable. A family solicitor can help you understand your legal position before and during the mediation process.

Does mediation and divorce mean I don't need a solicitor?

Not necessarily. While mediation can reduce the need for formal legal proceedings, it does not replace independent legal advice. A solicitor can advise you on your legal position before mediation begins, help you assess whether any proposed settlement is fair, and review financial disclosure during the process. Having legal support in the background does not undermine mediation. In many cases it strengthens the outcome by ensuring any agreement is genuinely informed and sustainable.

Is a 50/50 split always a fair divorce financial settlement?

An equal division of assets is not automatically fair, and in most cases it is not the outcome a court would order. As the law currently stands in England and Wales, the court's primary consideration is the needs of both parties, including housing, income, and pension provision. Where one party has sacrificed career progression or earning capacity during the marriage, a straightforward equal split may leave them significantly worse off in the long term. The starting point may be equality in longer marriages, but needs rather than arithmetic tend to drive the outcome.

What happens to pensions in a divorce financial settlement?

Pensions are a matrimonial asset and should be considered as part of any divorce financial settlement, even where one party holds the pension in their own name. Agreeing to split only the liquid assets while leaving pensions out of the calculation frequently produces an unequal outcome. A pension sharing order, pension attachment order, or offsetting arrangement may be appropriate depending on the circumstances. You should take legal advice before agreeing any settlement that does not account for pension provision on both sides.

Does a mediation agreement automatically become legally binding?

No. An agreement reached in mediation is not legally binding in itself. To become enforceable, it must be converted into a consent order and approved by the court. This is an important step that is sometimes overlooked, particularly where parties have reached an agreement they are both comfortable with and want to formalise quickly. A family solicitor can draft or review the consent order to ensure it accurately reflects what was agreed and will hold up if circumstances change in future.