Written by Anne Braithwaite, FMA
I have been a mediator for over 25 years. For all but the last 5 ½ of those years, I was also a divorce lawyer dealing with all the fall out when a marriage ends with a focus on money. I guess I’ve now spent going on for 35 years helping people from all walks of life sort out what to do when the world as they know it ends. I know that, amongst all the heartache and anger, there is fear about what the future will bring. Until finances are sorted out it’s impossible to live other than in limbo, a very insecure place to be.
So everybody who separates needs to resolve financial issues before they can rebuild their lives. Often having a safer place financially speaking helps focus on the emotional needs of children. It also means you can answer the questions which they have about where they will live and go to school.
Many people don’t have a clue where to start or, even if they do, feel the need of some professional help. A mediator gives that help. Mediators don’t just get couples in a room and then let them just try to sort things out. How would anyone know where to start? That’s the mediator’s job. Whilst being flexible to the needs of each couple, mediators are in charge of the actual process. Your mediator ensures that sessions have focus and that the whole process feels that it is going somewhere. Mediation has to feel safe and that it has a structure and purpose.
Separation is new to you. You need to understand what the rules are. Mediators help there by giving what we call “legal information”. That means explaining things such as what the relevant legal factors are in a neutral way. I know my clients find that knowing what a court would consider helps them talk about their own financial division and what feels like a fair outcome. Having that information enables people to start to talk with a sense of direction.
Mediators also help to explain what you might do about pensions for example, a subject of great importance where most people feel at least a little at sea. Mediators make suggestions about how to achieve agreed valuations and get mortgage advice. They help you pull all the threads together. This is all new to clients but many mediators have years of experience in the family law field. We are guides through the process who can pass on knowledge so that you realise that you actually can be in control of what happens. Crucially a mediator will help you work out the shape of your future.
This is all against the background of full financial disclosure. There has to be evidence about income and capital, not just taking each other’s words for things. Apart from the fact that nobody can start to talk about dividing everything up without establishing what is there in the first place, mediators realise that trust is usually in short supply. Clients only feel safe to negotiate when they are sure of the facts.
A mediator will also listen to what is important to you both and may help you take into consideration things that haven’t even occurred to you, or at least not to both of you, such as being able to live in areas which offer a chance of getting children into good schools and how to help your children through higher education and to afford the school trips that their friends will go on.
When you decide on what you want to do, the mediator sets that out in a memorandum of understanding. This isn’t legally binding yet as it is the last step in negotiations. It’s also a good idea to have legal advice before making your proposals legally binding. I always strongly suggest to my clients that they take that advice in between our mediation sessions and not wait until the mediation is concluded. The terms in the memorandum are made legally binding by having either a separation agreement or a consent order made in divorce proceedings.
Mediation is a professionally led means of negotiation, a negotiation where you are assisted by a neutral third party who will be able to give you legal information and practical pointers whilst ensuring an equality of bargaining power between the two of you. It is a process where the two of you determine the shape of your futures for yourselves. After all only the two of you know what will best suit you and your family. What mediation is not, is remotely fluffy.
Treasurer on the board of The Family Mediators Association