Mediation – speak freely, listen, understand, then problem solve

The Family Mediation Week 2024 was a wonderful focus on mediation as an effective and client focused way of resolving issues between separating couples, including finances and children. David Emmerson, an award-winning family lawyer, discusses mediation in more depth and looks at some of its advantages for families. Mediation can be a ‘transcendental’ experience, especially with one of Anthony Gold’s 5 family mediators.

What is family mediation?

Family mediation is a voluntary confidential form of alternative dispute resolution. A mediator is a neutral and impartial third party who helps the separating couple reach a negotiated solution to their family issues such as the arrangements for children, finances, property, pensions and capital.

Mediation works because the mediator and the process itself encourages people to have a voice and speak freely. The mediator will also ensure that each party listens to what the other person is saying, sometimes in a way you have not done before, so that you at least understand what their issues are. You do not necessarily have to agree with what the other is saying, but if you did then that would help, but it certainly helps to understand and that leads to effective problem solving.

What happens in a mediation?

Information is gathered and verified so that each person’s financial position is clear. Once this aspect has completed, it is the role of the mediator to help fix an agenda, in conjunction with the parties, of the issues to solve so that a fair and workable outcome is achieved.

What is the advantage of mediation?

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 as the children and finances are never dealt with together in the court process which is often a considerable disadvantage, as well as very expensive and time consuming. Solving issues relating to the children are often connected to finance solutions too.

The discussions take place in a series of meetings under the direction and guidance of the mediator. Such meetings are usually face- to face, but mediation by Zoom works well too and can be more convenient. Sometimes the parties are in separate rooms or Zooms.

How mediation deals with difficult issues?

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 times 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 “recompose”.

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 [a judge] making a decision about your children and your finances.

Mediation must always be safe and each participant confident that they can speak, negotiate and make decisions freely.

What are the different types of mediation?

The most common form of mediation is where both are with one mediator sitting in a comfortable room where separating couples are free to discuss matters in a relaxed atmosphere.

1. Co-Mediation

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.

2. Shuttle mediation

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.

What is the 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 can provide key information about what the law is. Therefore, it is very important for each party to have the benefit of independent legal advice from someone like a Resolution accredited specialist. Find a law professional today.

Here, the specialist will listen and understand 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 case law and statutes can be found easily on the web, the internet cannot tell you how the law applies to your circumstances.

In some cases, it is either necessary or preferable that the lawyers accompany the parties in some or all the sessions. The process is still conducted by the mediator but the help, support and legal advice and guidance of the lawyers in the sessions can be very beneficial.

A good, experienced lawyer can tell you when you can let go a position or demand or whether your case is strong enough to stick with something.

Safeguarding in Mediation

The mediator would not approve 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 engage in mediation. Mediators are trained to deal with an imbalance in bargaining power or indeed bargaining skills.

What is the cost of mediation?

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 mediation 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 and cost 10s of 1000s of pounds.

How can mediation help with child arrangement?

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 are 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 mediation 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 considered.

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.

How to work with experts in mediation?

In mediation, both parties 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 adviser 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. It is not necessary to use experts in every case.

What outcome can be expected at the end of mediation?

Both research hand statistical information shows that most mediations resolve issues successfully and that the vast majority of participants are happy with the outcomes and the process.

Contact David Emmerson at david.emmerson@anthonygold.co.uk for more information.

• David is an experienced family lawyer specialising in resolving family disputes concerning finances and children constructively and effectively, leaving clients able to move forward positively after the difficulties of relationship breakdown.
• David was the winner of Resolution’s lifetime achievement award for excellence and innovation in family dispute resolution in 2023. The most prestigious award in family law.
• David ensures clients always focuses on the particular needs of every child.
• Able to conduct cases out of court through mediation, collaborative practice or other negotiating or where necessary through the courts as an experienced litigator and advocate.
•  ‘Entirely sensitive to the fact that in family law, the relationships often have to continue when the lawyers leave’ – Legal 500
• David is Resolution and Family Mediation Council accredited and is praised for being ‘down to earth and able to take a broad view of matters’ – Legal 500
• Legal 500 says the ‘skilled’ David Emmerson ‘puts clients at ease’. He ‘is an experienced problem solver: calm and reassuring. He gets to the issues quickly whilst holding the client’s confidence. He is a skilled mediator who is able to combine his extensive legal knowledge with the empathy and impartiality needed to mediate complex cases’.
• Clients say: “He is a lovely man (incredibly kind and supportive) and very well respected as a lawyer. He is one of the leading lights of Resolution, an organisation committed to handling family break up in as conciliatory was as possible – but he has real steel about him also, so I would totally trust him to protect a client’s interests if the going got rough.