by David Emmerson, accredited mediator and solicitor at Anthony Gold
Family mediation is a voluntary confidential form of alternative dispute resolution. A mediator is a neutral and impartial third party who helps the parties reach a negotiated solution to family problems such as the arrangements for children, finances, property, pensions and capital. It works because the mediator and the process itself encourages people to have a voice and speak freely. The mediator will also ensure that you listen, sometimes in a way you have not done before to what the other person is saying, so that you at least understand what their issues are. You do not necessarily have to agree, but if you did then that would help, but it certainly helps to understand.
Information is gathered and verified so that each person’s financial position is clear. Once this has happened, it is the role of the mediator to help fix an agenda and problems to solve all the issues so that a fair and workable outcome is achieved.
Mediation has the advantage of being able to deal with issues relating to the children at the same time as dealing with the finances. In the court process, two separate applications would have to be made and the children and finances are never dealt with together, which is often a considerable disadvantage. Solving issues relating to the children are often connected to finance solutions too.
Potential problems with mediation
If each person has not fully and frankly disclosed all information and documentation relating to the finances, then the mediation cannot proceed, but the mediator will make every effort to ensure that full disclosure is made as the alternative is invariably the other person issuing court proceedings where the disclosure is ordered by the court.
Mediation sessions at time can be intense, challenging and even upsetting, not least because these issues are invariably very important to both. However, the mediator will ensure that the sessions never get out of hand and that time is allowed for each to “recover”. However, the tension that can be caused in a mediation is nothing compared with the pressure and anxiety that a contested court case can bring with the prospect of giving evidence, being cross-examined and someone else making a decision about your children and your finances.
Types of mediation
The most common form of mediation is where both are with one mediator sitting in a comfortable room where the parties are free to discuss matters in a relaxed atmosphere.
In some cases, co-mediation, where there are two mediators, can be beneficial because that can help in a case where there are complex dynamics. However, this naturally is more expensive.
Shuttle mediation can be used where there are particular anxieties by one person with regards to safety or coercive and controlling behaviour. Here, both are in separate rooms and the mediator works between each room facilitating discussion.
Role of the mediator and the lawyer
The mediator can be , and often are, trained family lawyers but mediators cannot give specific tailored legal advice in mediation. They are able to provide key information about what the law is. It is very important for each party to have the benefit of independent legal advice from someone like a Resolution accredited specialist. Here, the specialist will listen and understand all of the background to the children and financial issues. The lawyer will then explain both what the law is, but also importantly how it applies to the individual person’s particular case, so each person is in a strong position to know how to negotiate in the mediation process. It is also helpful to keep in touch with the lawyer as the mediation process develops. Whereas family caselaw and statutes can be found easily on the web, the internet cannot tell you how the law applies to your circumstances.
A good experienced lawyer can tell you when you can let go of a point or decision or whether your case is strong enough to stick with something.
The mediator would not approve of a case as being suitable for mediation where there are relevant safeguarding and domestic abuse issues. Mediation is voluntary, and you cannot be compelled to attempt mediation. Mediators are trained to deal with an imbalance in bargaining power or indeed bargaining skills.
The costs of mediation, even if you use a solicitor to support and assist you throughout, is very significantly less than the costs of a contested court process. The length of the process varies but the number of sessions really depends on how the negotiations develop and also how complex the issues are. It is not uncommon for matters involving children and finances to be resolved in two to four sessions, which might be spread over a two to three-month period. This compares very favourably with a fully contested court process, which can often take 12-18 months.
Naturally, both parents will say the children are the most important factor. In a court of law, the welfare of the children will be both paramount consideration in children cases and the first consideration in a finance case. However, parents can often have differing views as to what is best for their children and what arrangements should be put in place for the children to spend time with each parent. In mediation, it is important that the views of each individual child is taken into account. This can be done in a number of ways and one of them is for a mediator, who is specifically trained in children issues, to speak with the children individually on a confidential basis and the children’s views fed back into the main mediation. In many cases, this is not necessary but in certain cases it can be vitally important, particularly with children of a particular age and viewpoint. This does not mean that the children themselves are making decisions, but simply that their views, uncomplicated by the pressures of speaking with either parent, are known and taken into account.
In child arrangements, it may well be in difficult and complicated cases that interim arrangements need to be put in place and tested and then reviewed so a mediation process can be staggered, so there is a review after three or four months with a further session.
Another advantage of mediation is that both can agree to bring in the expertise of a specialist to help resolve issues. This might be instructing a valuer to value a company, business, or properties. It could be bringing in a pensions expert to work out what the best way for both is to reschedule pension investments. It may well be bringing in an independent financial advisor who can help each person in a neutral way of fixing budgets which can be far cheaper than contested court maintenance proceedings. Other experts can include divorce coaches and therapists where one or both are finding the emotional side of separation particularly challenging.
Mediation is a very flexible process and the use of such experts, although adding to the costs, can be extremely beneficial.
Both research and statistical information shows that most mediations resolve issues successfully and that the vast majority of participants are happy with the outcomes and the process.