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

David Emmerson 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.

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 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 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.

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 of the issues to solve 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 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.

Mediation During Covid-19

Like everyone we are adapting our services to meet the problems caused by the pandemic and the good news is that mediation, in all its forms, is ideally suited to conducting sessions by Zoom, Teams or WebEx.  Almost all of our work presently is online.

With online mediation it is possible to have all parties talking and seeing with each other at the same time but also to arrange for secure and confidential breakout rooms where the mediator can talk privately with each person in turn.  Shuttle mediation works very effectively online because the mediator will deal just with one person at a time and therefore any past conflict that there might have been which can affect the confidence of the parties being on the same screen as each other can be alleviated very successfully.

Utilising online facilities means that documents can be shared and exchanged on screen to make the mediation as effective as face-to-face roundtable sessions.

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.
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

This 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. Such mediation frequently takes place on line and where each party spends time separately with the mediator.

Hybrid mediation

Hybrid mediation is conducted by lawyers who have been trained either by Resolution in the hybrid model or with the civil mediation model.  Hybrid mediation is often used in complex family cases where there are significant differences between parents with regard to their children and child arrangements or in financial remedy cases where the use of other professionals such as accountants, independent financial advisors and divorce planners can be utilised very effectively.  Hybrid mediation also enables the separating couple to have their lawyers with them for key stages of the discussions and the negotiations which can give necessary support, confidence and guidance in progressing proposals towards a resolution.  All the delays that there are in the court process and the very high costs associated with taking challenging and complex finance and children cases through the courts, hybrid mediation offers an ideal solution to resolving disputes and utilising the talent and experience of experts.

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. Therefore, it is very important for each party to have the benefit of independent legal advice from someone like a Resolution accredited specialist, https://resolution.org.uk/find-a-law-professional/. 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 case law 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 a position or demand or whether your case is strong enough to stick with something.

Safeguarding

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. Shuttle or hybrid mediation are extremely good methods of enabling mediation to work effectively in appropriate cases where there has been past domestic abuse.

Costs
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.

Children
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 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.

Using experts

Another advantage of mediation is that both can agree to bring in the expertise of a specialist to help resolve issues. See hybrid mediation above. 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.

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

Outcomes
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.