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Tuesday, January 17, 2023
Mediation is a process to settle family legal disputes both in relation to financial issues and children’s issues on separation.
It is not suitable for everyone but, it is an alternative dispute resolution that is significantly underused by families that are going through divorce or separation.
It is not a process to deal with emotional issues and reconciliation, it is a process to enable separated spouses or cohabitees to resolve the issues that arise from their separation.
Clients that decide to proceed with this option are absolutely shocked by how quick the process is, how it enables them to manage their costs very effectively because it is so much cheaper than the legal process but above all how much control they have over the outcomes. What it is particularly good at is establishing a new level of dialogue when communication is so difficult following separation and recrimination and upset undermine effective dialogue. Mediation really does get to the issue very quickly. It is amazing regardless of how upset and angry clients can be, once they have had the opportunity to voice that in a constructive manner, it is much easier to move on to look at arrangements going forward.
Above all mediation is future focused.
I have been a fully accredited mediator for the past 5 years, and I did what is considerably thorough training because I wanted to find a constructive way to resolve disputes. It is refreshing after over 30 years of working with clients purely in a litigation context, I have the perspective to understand how useful mediation can be as one of the many tools available to dealing with issues arising out of family breakdown.
Our Court system is at stretching point. Some cases have to go to Court, it is unavoidable, but they can still even when we are in the system step back and try mediation. That option is always available. The problem with the Court system is that it can prolong and, in some cases, aggravate the dispute, never mind the level of cost.
It is difficult to get on with your life without having a proper understanding of what is going to happen in the future, and that is not just in terms of arrangements for the children. There are financial implications of not having any certainty about money following separation.
Financial matters resolved in mediation:
As long as there is a willingness by both parties to provide the necessary financial disclosure, even complex financial issues can be dealt with within mediation. I recently did a mediation for two consultants who had two significant pensions and several properties, but we had no difficulty in two joint sessions resolving all of the issues. They had been unable to progress the separation for a long period of time, both busy and reluctant to engage lawyers on a litigation basis, and they just did not understand how effective a mediation could be.
Mediation is widely used in commercial disputes, so construction disputes will more usually end up being resolved through a mediation process and we adopt a very similar type of model.
Mediation in children’s issues:
It is recognised that resolving arrangements for children through the Courts is far from ideal. Again, you have delay and expense, but also the fact that many of the issues that go before the Courts are not legal issues. They are about parenting styles and issues relating directly to children and young people.
When together, there is often a strain in terms of parenting approach. Once you have separated that can become a massive issue leaving everybody confused as to the way forward.
It can be really helpful to sit down and work out arrangements for children and that can include a discussion directly with a child or a young person and then feeding back to the parents information they have agreed that can be shared. Clients who engage in this process including young people are very clear that they feel much more in control. I have families who come back into mediation from time to time. I am thinking of one family who separated over 5 years ago, sorted out arrangements and then the situation became difficult when they were trying to reach an agreement about provision of high school education so they came back into mediation and were able to sort this out.
What does the mediator do:
My role is to use the knowledge and skills I have to effectively facilitate the discussion. I am not able to give legal advice in the mediation setting because I am entirely impartial. It is not for me to advise you how to resolve the issues that you bring into mediation, that is for you and your separated partner to do and I am there to enable you to cut through what inevitably and understandably has become difficult communication, future focus, and find solutions that work for everyone. It is your decision as to what you agree, it is nothing to do with me.
Once we have agreement, I will write up the agreement into a memorandum of understanding and provide an open financial statement logging all of the disclosure documents. You can then seek independent legal advice on your agreement and if you want, have that agreement made into a Court Order which is a relatively straightforward process.
The process:
Initially, I meet with each party separately for a confidential meeting so I can assess whether the case is likely to be suitable for mediation, which most cases are. I then set up, usually at the office in the boardroom, our first joint meeting. If this is a financial mediation, you would have been directed to provide a list of information so I can put together assets and liability schedules prior to the first meeting. I will then agree an agenda with you both, and we work through that. Most meetings take 1.5 – 2 hours and in most cases, issues are resolved within 2 – 3 sessions.
Charges:
At the present time, our charges for the initial individual meeting, known as a mediation information meeting £150.00 plus VAT.
For each joint session of mediation, you are each charged £250.00 plus VAT, which is a fixed fee and includes the written agreements that I circulate after the meeting.
If you wish to know more about Mediation please contact jennygoldstein@samuelphillips.co.uk or call 0191 232 8451.
Written by Jennifer Goldstein, Senior Consultant – Private and Public Family Law
Jenny is a Senior Consultant and one of the leading Family Lawyers in the North East, with over 30 years post qualification specialist experience across all areas of Family Law.
