Collaborative Practice, Dispute Resolution, and Mediation in 2022

Family practice is changing now more rapidly than it ever has done before. Just imagine before March 2020, where the vast majority of court hearings were face-to-face, where online mediation and collaborative practice was rare, and the Family Mediation Council would not allow mediators to conduct mediation information and assessment meetings by Skype or Zoom, save in the most exceptional circumstances. No-fault divorce has been approved by Parliament and is expected to be available for practical use from April 2022. This may lead to a reduction in the number of people thinking they need advice from a solicitor to divorce. The pandemic has us mainly working from home, almost all court hearings are virtual, and clients are not bothered at all that they Zoom with us in our casual clothes (smart causal of course) and rarely set foot in our office.

Pros and Cons of Technological Developments

Although the pandemic has forced change, it is not necessarily changing for the better. Whereas virtual video hearings work very well in the higher courts where the judges and advocates are used to the technology, searching bundles and preparation for virtual hearings, that is not always the reality for many in family courts at the lower level. Here, already crowded lists can become dysfunctional because not all documents have been updated to the virtual court file, emails from the parties have not been forwarded to the judge and many individual participants struggle with the technology and cannot search through a 200-page bundle on their iPhone. Those utilising the court system directly with the judges have a very different experience to those who have to proceed through the court office email. We have a two-tier system here, those with the technology, know-how and connections and those without.

But family practice was already changing anyway. Advancements in technology have meant that more and more dealings with our clients are systems-based. Comparison websites and TrustPilot are big drivers for attracting clients. What is clear is that the vast majority of clients do not want to embark upon a court process and are not willing to pay for full representation in that court process.

Out of Court Dispute Resolution

A mixture of the delays with the court and a better realisation of how the arbitration process works means that arbitration in both financial and children matters is increasing. More and more barristers and senior and retired judges are being asked to provide early neutral evaluations or private Financial Dispute Resolutions and the feedback from clients of arbitration and Early Neutral Evaluation is very positive. The reality is that arbitrators and evaluators tend to have more time to apply to the process in terms of preparation and delivery than our poor judges do. Mediation continues to be popular and with successful outcomes but is still not utilised as often as it should.

Resolution, the organisation representing family practitioners, has ongoing drive to prepare and train our members in the ever-evolving family practice world. Not just the black letter law training but the skills training that is necessary to attract clients, be a more effective negotiator, a mediator or collaborative practitioner.

Client-Led Resolution Revolution

At the end of the day, it is the clients that are choosing how they want their relationship breakdown to be dealt with. They are far more price savvy, but also want to find ways in which they can resolve issues constructively and fairly but well outside the court process. This client led revolution has meant that there are challenges for Resolution members. We must adapt our practices to meet these client needs and make our services more attractive workable and affordable for clients. MIAMs can now be conducted by Zoom and Skype. Resolution has further developed hybrid mediation which is becoming immensely popular but also practical. Hybrid mediation particularly works where the parties find it difficult to be in the same room together, when they get stuck in negotiations and where the involvement of other expert professionals, including the representing lawyers are actively involved in the process. Hybrid mediation has flown since the pandemic, with separating couples having the benefit of experts in their field being able to help resolve cases directly and effectively. Experts such as therapists, accountants, valuers and IFAs have been used.

Collaborative practice

Collaborative practice came from the USA to the UK in the early 90s and was adopted by Resolution.  The premise with regard to collaborative practice is that both parties commit to resolving issues out of court and in a series of round table meetings with their lawyers present they seek to resolve issues concerning the children and finances. Most or all of the discussion takes place within the meetings and there is little or no correspondence. Collaborative practitioners are specifically trained in the process and use a variety of skills and techniques to help the clients achieve a sensible workable solution. Collaborative practice is attractive because the client not only has the support of someone in the meetings but a lawyer there to advise them too which contrasts with traditional mediation where the lawyers generally are not present.

Resolution governs collaborative practice in the UK and there are presently around 1000 accredited collaborative practitioners. However, there has been concern by a large number of members that collaborative practice is on the decline with difficulty in being able to encourage clients to take up the process and often solicitors for the other party either not accredited or not willing to engage in a collaborative practice. Some collaborative practitioners report they are doing less collaborative work and others none at all. Some fear that collaborative practice is mortally wounded.

Reinvigorating collaborative Practice

Resolution and like-minded practitioners are very keen to reinvigorate collaborative practice. It can be the most satisfying and dynamic way to resolve family issues and personally gives me the most satisfaction of all the processes. The Dispute Resolution Committee and the Collaborative Working Party (CWP) have last year published a revised participation agreement. This is the agreement that governs the parties and their lawyers within the process. The revision of the participation agreement is most welcome. because the existing agreement was quite out of date.  The CWP has worked very hard on this as indeed they have on many other inspirational and proactive marketing ideas. The new participation agreement makes several important changes and in particular:-

  • It allows the flexibility that we now need whilst conducting collaborative practice remotely.
  • It allows for the first time for the collaborative practitioners in a case to instruct either a solicitor or barrister to provide an early neutral evaluation of a series of points or indeed refer issues – including the whole issue to arbitration. Such a course would only take place when the parties were particularly stuck on resolving issues, but it might be for example the amount and duration of maintenance; the extent to which inherited and other non-matrimonial property was required to be used for needs.

We hope these changes prove successful. We would also like to consider other ways in which collaborative practice can be made more attractive to the lawyers and particularly the clients.

 

The ‘disqualification clause’

One issue that keeps coming up for discussion is whether or not it is appropriate to retain the ‘disqualification clause’. Presently the parties are required not only to make a commitment to resolve issues out of court but to take a step further and they are required to sign a document that obliges them to transfer to new solicitors if they issue court proceedings for anything other than a consent order. The inclusion of the disqualification clause is a rule, but it is one that Resolution can change. The disqualification clause is cited by some practitioners as a reason why collaborative practice is used so little.

Other practitioners are keen to retain the disqualification clause. Several practitioners believe that the disqualification clause is a fundamental pillar of collaborative practice. It is the glue that binds the clients and the lawyers into the process, meaning that it is not only more likely to be successful, but also prevents the easy threat of issuing proceedings if a person does not like the way the discussions are going.

There is also anecdotal evidence that many people are reluctant to admit that they do not include the disqualification clause because they fear that disciplinary action will be taken by Resolution for not including the clause. That may well be a fear, but I can confirm that Resolution has never taken such action, nor do I think they ever would.

Other arguments are that it is sometimes just not possible to assess at the outset of the case whether or not collaborative is appropriate, particularly where disclosure has not been completed and there are concerns that one party may not fully and frankly disclose their financial position and that until disclosure has taken place it is too early to assess whether the case is suitable for collaborative. Also, many clients are recommended to Resolution members because of their reputation and all-around skills, and not necessarily just because they are a collaborative practitioner. That client does not want to lose the lawyer that they have been recommended and will have built up a significant degree of trust if proceedings have to be issued. Perhaps, also the practitioners are new to each other and have not worked together before and maybe there needs to be a bit of feeling the way before deciding that you can work collaboratively together.

Presently the situation is unsatisfactory in the way practitioners who do not include the disqualification clause are viewed by some. Take as an example a Resolution member who is collaboratively trained, embarks upon a collaborative process with a collaboratively trained colleague and a separating couple. Within that process there are initial telephone calls and meetings that establish anchor statements, there are four-way meetings and all commit to the principle that we wish to resolve issues relating to say children and finances without utilising court proceedings. The collaborative practitioners explain to the clients that the collaborative process is a state of mind and an approach to working on a without prejudice basis and collaboratively to resolve issues. They have a series of meetings and issues are resolved and a consent order presented to the court. The clients are happy with the process as are collaborative practitioners who are satisfied that the clients have achieved an acceptable outcome. However, they did not sign a participation agreement with a disqualification clause in it. The way our rules stand at the moment and the current participation agreements and guidance appear to state that they are not acting as collaborative lawyers. They are not engaging in a collaborative process and they cannot claim that this case has been dealt with collaboratively. To call this simply ‘round table’ discussions is not correct because of the process that has been followed and the training that has been applied. Some practitioners seek to call collaborative without the disqualification clause ‘principled round table’. This is worse, not only does it ignore the collaborative focus of the process, but implies that any other process conducted is not principled.

Is an Exclusion clause essential?

At the end of the day, I respect and understand the views of those who believe that having an exclusion clause is a powerful tool and a major commitment from all involved in the process to avoid court. However, even though I may include it in about half the collaborative cases that I do I do not personally think that such a clause is essential. Indeed, my view is that the insertion of the disqualification clause should be optional and that it should be the decision of the clients as to whether it is in or out and those clients make that decision after having the advantages and disadvantages of the clause explained to them and confirmed in writing. That is a personal view and, it is not the view of Resolution’s National Committee or the Dispute Resolution Committee who have not discussed any such change. Having a client-focused approach to the inclusion or not of the disqualification clause may indeed provide a greater level of flexibility and in turn attract more clients to the collaborative process.

Changes in Family Law

Changes are happening across our whole family law market. There are changes in how relationships and families are made and ended. It would be to my mind better for family practitioners and more importantly, the clients if the scope of collaborative practice was widened and Resolution was able to make the training in such processes to be easier, more flexible and adapted to a wider family skills base so that working collaboratively becomes the basis for most cases where it is appropriate to do so.

Whatever, mediation and collaborative practice offer the very best way to resolve the issues of separating couples rather than the very broken, underfunded and demoralised court service.

David Emmerson OBE, collaborative practitioner, accredited and hybrid trained mediator, deputy district judge specialising in finance and children cases.

Chair of Resolution’s Dispute Resolution Committee

dae@anthonygold.co.uk

Family Mediation Week takes place from 17 January 2022 and Anthony Gold is offering free mediation information meetings (MIAMS) for the whole of January.  For more information please contact either Michelle Howarth at mih@anthonygold.co.uk or Jordan Ridley at jri@anthonygold.co.uk or by telephone on 020 7940 4000.

Hybrid Mediation and Financial Neutrals

Mediation is probably the most effective, quickest, cheapest and most satisfying way of resolving issues relating to the breakdown of a relationship. Hybrid mediation, a form of family mediation is an innovative, progressive combination of family and civil models of mediation.

What does Hybrid mediation involve?

One more of the following:-

  • The mediator can bring other family professionals and experts into the process with the agreement of the parties, to help deal with complex and difficult situations such as accountants, valuers, independent financial advisers, psychiatrists, independent social workers.
  • The mediator can bring in the parties’ lawyers to help advise and support in complex and difficult cases.
  • Engaging in shuttle mediation where the mediator spends time with each party on their own enabling the opportunity of exploring issues and settlement proposals in greater detail.
  • The party’s lawyers join in part of the process, which is suited to high conflict or complex cases, as it facilitates the inclusion of lawyers directly into the process to advise and guide. With the support of their lawyers, the parties are helped to focus on the issues, explore the options and formulate proposals for settlement.
  • Mediation and dispute resolution can be face-to-face, or online via video conference and so there is no geographical barrier.

The advantages of hybrid mediation

  • Hybrid mediation can be particularly effective when there are certain safeguarding issues and where one party does not feel comfortable being in the same room or same Zoom screen as the other. Also, where there is an imbalance of power between the parties to the mediation or another reason why either person finds it hard to have a voice. Screening and safeguarding remains extremely important.
  • It enables each person to explore options with the mediator in greater detail without feeling they have over-committed.
  • It enables other professionals to use their skills, knowledge and solutions which makes the whole process better informed and more likely to achieve workable, fair settlements.
  • Hybrid mediation can be undertaken before any court proceedings are considered, but also if a parties find themselves already in the court process but want to achieve a settlement outside, away from the stress, delays and costs of litigation.
  • Hybrid mediation is far quicker than the court process and if preparation is undertaken beforehand can take place over the course of a day, or series of pre-booked sessions where parties can choose to have their lawyers present in the process avoiding delays between meetings whilst they take advice, and the lawyers can draw up the consent order straightaway once the proposals are agreed.
  • More cost-effective: being actively involved in the process means parties do not have to repeatedly update their lawyers with the progress of the discussions; it reduces correspondence and the risk of misunderstandings or disagreements between the solicitors.
  • It reduces conflict. Separate meetings mean heavily emotional joint meetings can be avoided thereby enabling parties to focus on the issues and outcomes in a calmer and more rational way.
  • Parties are empowered and supported. Hybrid mediation provides a safe and supported environment for people who might not otherwise be willing to mediate.
  • Increases certainty of outcome. As lawyers can be more directly involved in the process and are on hand to advise with the full knowledge of the issues and direction of discussions, there is less risk that parties may change their minds as can happen when advice is sought by parties in between meetings. The parties choose to what extent their lawyers are involved, less or more.
  • Confidential and private. A major advantage of mediation is that it is private and confidential. So, no one else can access the documents or hear what is being discussed. This is unlike court proceedings, where even in family cases, the press can have access and transparency rules may involve details of the history and issues being made public through national or local press or via social media.

Who are hybrid mediators?

Hybrid mediators are either dual qualified family and civil mediators, or those who have undertaken specialist training with Resolution to enable them to utilise both family and civil mediation techniques and procedures. The training enables a hybrid mediator to be more flexible and innovative with the parties.

What type of cases are suitable for hybrid mediation?

Hybrid mediation can deal with issues between a separating couple relating to finance, children or, indeed, both.  In relation to finances, issues such as the level of maintenance, how assets are distributed on separation, longer term support for the children and how pension assets are treated can all be dealt with within a hybrid mediation setting and often with the benefit of other expert input.

In relation to children’s issues, hybrid mediation can help couples decide where the children will live and how much time they will spend with each of the parents, but also issues such as internal and international relocation or schooling.

How long does Hybrid Mediation take?

Mediations often involve three to five sessions and such sessions normally last one to two hours each.  However, if sessions are properly prepared for and information and document­ation is to hand then it can be possible to set aside a whole day for a mediation to take place, with a view to achieving a settlement at the end of that day.

Going to court should be a last resort to resolve most family disputes. The pandemic has exacerbated the significant delays in the adjudication of many family cases. The courts have made clear that all parties, legal advisers and the judiciary should continue to have express regard to all forms of non-court dispute resolution.

Confidential one to one meetings – what are the benefits?

A party can discuss things with the mediator in a way they might not feel comfortable doing if the other person were also present. The parties can explore options with the mediator without commitment or raising expectations. The exact things that are kept confidential are specific to each party and situation, and normally include the reasoning behind options for settlement or the people’s hopes and concerns. There are things the mediator cannot keep confidential such as financial information (e.g. the existence of an asset), or matters relating to the safeguarding of children.

Financial Neutrals

Separating couples considering divorce are often surprised to learn they have process options other than going to court. In mediation and collaborative options couples find real value in working with a team of professionals including their lawyers, mental health professionals and financial professionals. Financial neutrals are often used successfully in hybrid mediation.

What is a Financial Neutral?

Family finances are an important issue in most divorces. The change from one home to two homes may result in doubling family financial obligations. A financial neutral, who is a member of the mediation and dispute resolution process that assists the parties in gathering, organising, and analysing their financial information to assist in developing creative financial solutions that may not be available in litigation.

If instructed to do so one of the services that a financial neutral can provide is considering the existence of marital assets and sources of income. When a party has a concern about what assets exist or are owned by their spouse, the financial neutral can be asked, with the agreement of the other to conduct an investigation. This can allay concerns and provide certainty.

The financial neutral also educates both parties regarding their financial profile which can be especially helpful to couples in making decisions regarding the division of marital property and future support. In addition, the financial neutral will assist the parties in creating a budget for their future.

What does a Financial Neutral do?

  • Meets individually with each party to begin the information gathering process
  • Assists the parties in organising their financial information
  • Assesses the party’s current budget and projects their future budgets as will be post separation.
  • Educates the parties regarding their family finances.
  • Explains the nature of each investment. Spend more time with one party ensuring they are up to speed with understanding the finances and possibilities.
  • Assists in the division of marital assets and debts
  • Generates options for the division of retirement assets and pensions
  • Values any individually owned or jointly owned businesses
  • Provides tax advice and projections
  • Projects maintenance and child support needs over time
  • Analyse the tax benefits or detriment of decisions and consider alternative ways of achieving outcome that reduce tax to the overall benefit of both.
  • Plans for the funding of educational expenses for children.
  • Any other financial planning needs raised by the parties during the process

Advantages of using a financial neutral

They will have tried and tested software that is able to predict the best predictions of financial outcomes for now, 5- and 10-years’ time and into retirement. The software is interactive and can show different predicted outcomes at the click of a few keys.

Using a financial neutral in the process should eliminate the need for each party hiring their own expert and avoids the ‘battle of the experts’ which plays out in many divorces and greatly increases cost. The financial neutral’s role preserves family resources so that the parties’ assets can be better utilised for the evolving family.

Taking the appropriate advice is essential, because financial matters will form a part of your negotiations; regardless of the divorce or separation process that is selected.

Other Neutrals

Other neutrals include :-

  • Coaches and therapists to assist in people who are suffering emotionally and mentally from the process.
  • Communication experts to help provide understanding as to the effect of conflict upon children but also strategies to ensure communication is effective and safe going forward.
  • Accountant and other tax experts.
  • Valuers of properties, companies and other assets.
  • Pension experts and valuers.
  • Independent social workers who can assist in obtaining children’s views and offering advice as to the best arrangement there can be for children.

It may seem that adding another layer of professional fees can simply increase the costs of separation unnecessarily. A neutral will only be brought in where there is a clear need and benefit and all parties agree. Usually, however, such expert neutrals have shown time and time again that they assist the process to reach conclusions more quickly and fairly.

How do I Arrange Hybrid Mediation?

If you have a solicitor, they can help you find a mediator trained in the hybrid model, or you can self-refer. The resolution website has a list of mediators including those trained in the hybrid model. The mediator will talk you through the steps to getting the process started.

What are the Costs Involved in Hybrid Mediation?

Hybrid mediation is very cost effective. The costs of the mediator in hybrid mediation are generally met equally by the participants but can be in whatever proportions they decide. Each party will be responsible for their own lawyer’s costs. The lawyers’ direct involvement in the process reduces the need for people to liaise with their lawyers between meetings. It reduces the need for inter-solicitor correspondence. Outcome documents can be produced immediately.

David Emmerson

Partner Anthony Gold. Accredited and hybrid trained family mediator.  Collaborative practitioner. Deputy District Judge specialising in complex financial remedy and children cases. Solicitor Advocate.

david.emmerson@anthonygold.co.uk

  • ‘Entirely sensitive to the fact that in family law, the relationships often have to continue when the lawyers leave’ – Legal 500
  • 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.”
  • 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’.
  • Anthony Gold has a number of family accredited mediators and 3 hybrid trained mediators

Family Mediation Week takes place from 17 January 2022 and Anthony Gold is offering free mediation information meetings (MIAMS) for the whole of January.  For more information please contact either Michelle Howarth at mih@anthonygold.co.uk or Jordan Ridley at jri@anthonygold.co.uk or by telephone on 020 7940 4000.

Parenting not positioning after parting

We need to change the culture that gives the impression that when parents separate, their difficulties and relationships are legal or formal. The system needs to always emphasise that parents should not be disengaged from the normality of parenting their children as they did before, but now just within two households, not one.

There have been some significant advances that sow the seeds of hope that we are going in the right direction. But this campaign is a long and hard one.

Reframing Support for Families following Parental Separation

Several things hold us back. In the last month, in the media and amongst the parents I work with, I must have heard the phrases ‘custody’ and ‘access’ repeated over a dozen times. I have been working in family law for 30 years, and these terms were abolished before I started. Whilst a cultural shift away from such negative views of family life is never going to be easy, it is encouraging that The Family Law Language Project has recently been launched to try to tackle this.

Over a year ago, a report came out called: What About Me: Reframing Support for Families following Parental Separation. It set out that the way forward for parents should be centred on meeting their needs primarily away from the court, with a multidisciplinary approach and political oversight.

The hope of the President of the Family Division, on the report’s launch night, was not to see so many parents come through the legal system. “We in the court only know parents exist when they’ve issued an application and walk through the court door and often it’s too late then. They’ve got a mindset that they want a resolution based upon court processes, judges and the rest and it’s very difficult then to manage their expectations, to divert them somewhere else.”

Addressing Potential Problems

The report made clear that steering parents away from considering their issues as being legal ones only applied where there were no safeguarding concerns. The families at risk of harm still very much need to have the court as a safety net.

For all other parents, perhaps asking a few tough questions can help address where problems may lie:

  • are your children at the centre of any decisions made about their lives?
  • do your children feel and are loved and cared for by both parents?
  • do your children have contact with both sides of their families, including any siblings who may not live with them, as long as they are safe?
  • do your children have a [proper] childhood, including freedom from the pressures of adult concerns, such as financial worries?

These questions have been adapted from the wording of The Parenting Charter. The charter itself is preceded by a reminder of why it is needed. ‘Conflict is damaging, especially conflict happening between the two people your children love best in the world. Our Parenting Charter sets out what children should be able to expect from their parents if they are separating and what separating parents need to do in the interests of their children. At times of family difficulty, it is easy for adults to forget what it is like to be a child, distracted as they may be by feelings of hurt and fear for the future.’

Mediation and Parenting

Mediation is one way of helping parents come into a space where they can talk just as parents. Even if court proceedings follow, nothing said in mediation can be used against them (unless for safeguarding reasons). That allows parents to look at their roles through the lens of their children’s wellbeing alone, and not as though their issues with one another need be viewed as a form of legal battle.

Caroline Bowden

csb@anthonygold.co.uk

Family Mediation Week takes place from 17 January 2022 and Anthony Gold is offering free mediation information meetings (MIAMS) for the whole of January.  For more information please contact either Michelle Howarth at mih@anthonygold.co.uk or Jordan Ridley at jri@anthonygold.co.uk or by telephone on 020 7940 4000.

Financial Consent Orders in Mediation

One of the criticisms that have historically been levelled at mediation is that it does not provide finality for family finances. That is not true or fair at this point, as mediators can set out a full pathway to a final settlement, especially since they can now provide the first draft of a document that can be turned into Financial Consent Orders – a binding court order.

Back in the summer of 2019, family mediation’s governing body, the Family Mediation Council, (FMC) gave the green light to this change. There has perhaps been less publicity about this evolution in how mediators work than might have been expected.

Financial Consent Orders before 2019

Traditionally mediators only drafted very top-level financial agreements. These basic summaries of intent then had to be reshaped by solicitors into much tighter and more detailed legal wording, as they had to fit the formalities of a draft court order. Sorting out long term financial arrangements, especially relating to property and pension issues, can be very complex. A draft court order, which then has to be approved by a judge, must be as well drafted as if a judge themselves had handed down the same terms after a fully contested hearing.

Before 2019, many solicitors would struggle with the expanding and reshaping process of the ideas formed in mediation. There was often not enough detail from the mediator’s memorandum to make every part of the arrangement watertight. This would mean having to have secondary negotiations of the fine-tuning and the details. As indeed ‘the devil is in the detail’, some arrangements fell apart at this stage. It was frustrating for participants who thought that they had ‘sealed the deal’, to find themselves being presented with choices, with both naturally wanting the option more favourable to them. It is also not hard to see how, if they are already experiencing an element of ‘buyer’s remorse’ about the overall terms, they may decide that even a minor extra concession or two would be a step too far.

 

Financial Consent Orders since 2019

Over the last few years, since being approved by the FMC, mediators themselves can draw up the first draft of the financial consent order. The mediation participants are taken through the drafting details that are needed during the meetings, based primarily on the judicially approved standard precedents. The initial draft of the consent order, based on these mediated discussions, will then be included in the mediator’s normal memorandum. So the only difference is not one of structure, but of providing a more granular level of detail in practice. There are two advantages to this approach.

Less negotiation and drafting

Firstly, the solicitors who advise the individuals about the ultimate terms of the consent order will need to do much less additional negotiating or drafting of new terms that were not discussed before. This will mean that there will be less threat of undermining the progress contained in the main provisions that were agreed in mediation.

 

Greater client agency

The second advantage comes about because, previously, the parties could feel more marginalised during the drafting of the secondary terms by their solicitors. The dynamic shifted around with the solicitors being in control of this process, not the clients themselves. These clients can now have greater agency throughout, as the mediator will take them through the more nuanced or technical issues whilst they are there together and facilitate a resolution to any issues that arise from them. It is much better to spot issues that make the proposals unworkable or unpalatable in mediation, than when the mediation process has come to an end.

A better outcome for mediators and clients

Of course, the parties must be allowed to make any amendments to the draft created by the mediator even after it has left the mediation process. It is hoped that these changes will now be minor, rather than a complete reworking or unravelling, as the parties have invested so much in the process of considering the detail already.

So mediation can indeed lead clients through to getting a consent order, providing a full and binding outcome on financial matters. It can be an arrangement that is truly tailored to their individual needs, as the participants have been able to be so involved in all stages, from working out the main ideas to considering the workable legal terms that will make their settlement watertight.

Caroline Bowden

csb@anthonygold.co.uk

Family Mediation Week takes place from 17 January 2022 and Anthony Gold is offering free mediation information meetings (MIAMS) for the whole of January.  For more information please contact either Michelle Howarth at mih@anthonygold.co.uk or Jordan Ridley at jri@anthonygold.co.uk or by telephone on 020 7940 4000.

Technology in International Mediation and Child Abduction

The image of a typical mediation meeting would traditionally involve participants sitting around a table. Covid-19 has shown us how mediation meetings can be adapted and can take place remotely. At Anthony Gold, even prior to the pandemic, we would routinely undertake mediation with clients who were based in different geographical locations (national and international mediation) which would prevent face to face mediation and in cross-border matters.

Remote Mediation

Remote mediation has been eased over the years with changes in technology and affordable products on the market utilising the internet which has enabled free video-based communication. Mediation can take place over Skype, Zoom, Microsoft Teams or even FaceTime. The varied types of communication also allows different forms of mediation such as shuttle mediation to take place remotely.

These facilities have enabled separating couples and parents who live a distant from one another or who are in different countries, a mode of communication without the cost of, and the time involved in travelling, and being away from work for a significant period of time, which could be a huge concern for those who are self-employed.

The ability to undertake remote mediation in international cases is of great value in cross-border cases, whereby separated parents and mediators who are based in different countries can mediate online by way of video technology.

 

Technology, International Mediation, and Child Abduction

In our experience, remote mediation in international matters has been of huge benefit where speed is an issue, urgently re-establishing indirect contact with a child who has been unlawfully removed or retained and in international and national relocation cases. Issues concerning culture, language and even gender can be addressed when selecting a mediator. The voice of the child can also be raised in the mediation process.

Urgent discussions can take place in a safe and confidential environment addressing matters such as:

  1. The return of a child or their living arrangements
  2. Contact with the absent parent (both direct and indirect)
  3. Financial arrangements and maintenance
  4. Who will pay for flights
  5. Which parent will be responsible for travel
  6. How will school holidays be divided
  7. Which university will children attend
  8. Whether children will be registered in bilingual schools
  9. The religious and cultural upbringing of a child
  10. Dual passports
  11. Addressing any criminal proceedings which might be underway

Should there be a short court hearing to address specific issues to bring matters to a swift conclusion.

If an agreement is reached and recorded in a Memorandum of Understanding and the agreement is reflected in an order of the court so that it is legally binding, consideration should be given to obtaining a mirror order in the foreign jurisdiction.

For effective international mediation, you should consult a specialist mediator with a conscientious approach to the paperwork in a situation where there may be little by way of international recognition or enforcement.

Family Mediation Week

Family Mediation Week takes place from 17 January 2022 and Anthony Gold is offering free mediation information meetings (MIAMS) for the whole of January. For more information please contact either Michelle Howarth at mih@anthonygold.co.uk or Jordan Ridley at jri@anthonygold.co.uk or by telephone on 020 7940 4000.

Mediation Information & Assessment Meetings Explained

What is a Mediation Information & Assessment Meeting?

The initial meeting during the mediation process is called a Mediation Information & Assessment Meeting, commonly referred to as a MIAM or a first meeting. The primary aim of a MIAM is to provide essential information and to have a discussion separately and confidentially with each participant prior to the mediation process commencing.  It is not a mediation session.

A MIAM session is confidential. Anything discussed in a MIAM with a participant will not be shared with the other participant, nor will it be disclosed to the court if court proceedings are issued later.  Exemptions will apply on the point of confidentiality if there is a real risk of harm or abuse or an unlawful activity.

Only information that has been agreed to be shared with the other participant will be disclosed.

 

Who must attend a MIAM?

Intended court proceedings:

The compulsory requirement to attend a MIAM applies to any individual who intends to issue proceedings for a relevant family court application. The requirement to attend applies to both the intended applicant (the individual who commences court proceedings) and to the intended respondent (the individual who has to respond to the issued court application).

The intended applicant should provide contact details of the intended respondent to the mediator so that the mediator can discuss the purpose of a MIAM with the respondent.

Intended settlement out of court:

Even if the participants to mediation intend to settle their dispute out of court via the mediation process, both participants must attend a MIAM separately with the agreed mediator prior to the mediation process commencing.  This will allow an assessment  to take place as to whether mediation is suitable.

 

What to expect during a Mediation Information Assessment Meeting

The mediator should provide you with sufficient time and attention so that you are able to:

  1. discuss your situation,
  2. understand what mediation is,
  3. how mediation works,
  4. what options are available to you, and
  5. for the mediator to properly assess whether mediation is suitable.

The purpose of attending a Mediation Information Assessment Meeting is to essentially explore whether mediation or any other form of family dispute resolution is suitable for you and your circumstances.  This could include collaborative practice, solicitor-negotiation or arbitration.

By attending a MIAM session, you are not signing up to the actual mediation process.  This is only done, once each participant and the mediator have signed the Agreement to Mediate form after the MIAM sessions.

At the end of the MIAM session, the mediator will inform you if mediation is deemed suitable or not.  You will also be provided with an opportunity to consider whether you wish to proceed with the mediation process or consider an alternative form of dispute resolution.

You might also be provided with information specifically to your circumstances which could include information on the effects of separation for children, debt management, counselling, accommodation, benefits and other personal professional support services.

 

Must you mediate and attend a MIAM?

There will be cases where it is deemed that mediation is not suitable or appropriate.  This is usually in cases where there is domestic abuse although domestic abuse should not in itself be a bar to mediation.

This is so, provided the appropriate safeguards and structures are put into place including the use of shuttle mediation.  However, your ability to negotiate freely should not be hindered in any form.  If it is, mediation is not appropriate.

Other exemptions also exist and the mediator should discuss if any of these apply to you during the MIAM.

 

How long is a MIAM?

A MIAM usually lasts for around 45 minutes to an hour in duration.

 

How much does it cost to attend a MIAM?

If you are entitled to legal aid, then the MIAM and mediation sessions will be free.  If you are not eligible to legal aid, then there will be a charge for the MIAM session.

Mediation Awareness Week takes place from 17 January 2022 and Anthony Gold is offering free mediation information meetings (MIAMS) for the whole of January. For more information please contact either Michelle Howarth at mih@anthonygold.co.uk or Jordan Ridley at jri@anthonygold.co.uk or by telephone on 020 7940 4000.

 

What happens after the first MIAM?

If each participant and the mediator agree that mediation is appropriate, then the first joint mediation session will be arranged.

Please note, that all information received by the mediator during the mediation process will be shared with each participant, although the information will remain confidential outside of the mediation process.

You can, and are often encouraged, to take legal advice from a solicitor whilst the mediation process is underway.

If court proceedings are to be issued, only mediators accredited by the Family Mediation Council (accredited mediators) can sign the relevant court form to confirm that you have attended a MIAM.

 

Can Mediation Information Assessment Meetings be done remotely?

MIAMs can be conducted remotely and certainly have been during the pandemic. However, subject to restrictions, you should consider whether a MIAM should take place on a remote basis or whether an in-person assessment would be more beneficial for a proper assessment as to suitability.

Mediation Awareness Week takes place from 17 January 2022 and Anthony Gold is offering free mediation information meetings (MIAMS) for the whole of January.  For more information please contact either Michelle Howarth at mih@anthonygold.co.uk or Jordan Ridley at jri@anthonygold.co.uk or by telephone on 020 7940 4000.

Family Mediation Week – Something to Celebrate

I attended a wedding a while ago where the atmosphere was tense rather than joyful because the bride’s parents had divorced ten years previously and animosity between them was still apparent from the seating plan.

Marriage, as an institution, has been steadily declining since the 1970s and the UK divorce rate is estimated at 42%. Cohabiting couples are the fastest growing family type year on year. Whatever the relationship, a bad feeling lingers after an adversarial separation which continues to spoil the atmosphere of family gatherings in future years.

So what can a separating couple do to make sure they attend their children’s celebrations without ruining the happy day?

 

Mediation is the obvious dispute resolution option.

It is a civilised way of resolving separation and relationship issues, such as the timing of divorce, grounds for a divorce, parenting arrangements and finance. It has nothing to do with reconciliation or counselling. A trained mediator meets with a couple and helps them identify the areas of disagreement and explore the areas for settlement. The process is confidential and both parties are encouraged to take independent legal advice. Ultimately, they take control of their own separation.

A good example is a mediation I conducted recently with Susanna and Alan. They had accepted that their marriage was over but were still living in the same house and wanted to reach an agreement about their children.
Alan had a new relationship and this was upsetting for Susanna. She was also worried about how it would affect the children.
In mediation, it was possible to agree a parenting schedule so that Alan was spending frequent time with the children. He agreed that the children should not be brought into contact with his girlfriend until after he had separated from Susanna. The couple then went on to agree that the family home should be sold but Susanna would receive a greater proportion of the proceeds to reflect the fact that Alan had more pension provision. Both Alan and Susanna had independent legal advice, but their legal fees were kept in check as most of the hard work was done in the mediation process. An agreement was reached without them having to go through slow, expensive and emotionally traumatic legal proceedings.

 

Mediation is a flexible process.

It is equally valuable for married and cohabiting couples and those ending civil partnerships. It is usually a three-way process (either face-to-face or by Zoom) where the couple discuss their separation and outstanding issues with their chosen mediator. However, in high conflict situations a couple may choose to be in different rooms (or Zoom rooms) with a mediator moving between them (known as shuttle mediation). It is also possible to attend mediation with legal advisors (known as hybrid mediation).

The author of this post is Kim Beatson who was  one of the first solicitors in the country to qualify as a mediator. She was the first person to win the prestigious Family Law Dispute Resolution Practitioner of the Year (2011). She is a Band 1 mediator in Chambers & Partners where she is described as “An outstanding mediator who has a huge amount of emotional intelligence”. For information about her mediation service please contact her at kim.beatson@anthonygold.co.uk 020 7940 4011.

Family Mediation Week – Child Inclusive Mediation

Choosing a mediator

If, as a parent, you are considering child-inclusive mediation your mediator must have enhanced criminal records clearance and  have attended a specialist course on direct consultation with children (DCC).

Exploring the suitability of DCC

There is an abundance of research (nationally and internationally) which supports the right of children to be heard. It shows respect for children, involves them carefully in decision making and ensures that they understand clearly what is happening to them.  Listening to a child can also help to clarify the parenting arrangements which the child feels comfortable with and this can be very different from the picture portrayed by one or other parent. It can even help to clarify whether a child wishes to spend more or less time with a parent.

However, it is not straightforward and it does require considerable preparation with different considerations depending on the age and maturity of the child and the attitude of both parents.

Usually direct consultation does involve the child meeting face-to-face with the mediator but Zoom meetings have been commonplace over the last two years. Most children aged 10 years or over, are perfectly familiar with and comfortable with that medium.

Confidentiality

It would be usual for the mediator to write to or email the child to explain, in simple language, that the parents are “sorting things out” and that one of the issues is how much time the child should spend with each parent so that the arrangements works best for everyone. A simple explanation regarding confidentiality is important; not that the mediator will ignore issues of safety, abuse and safeguarding but that the child should feel free to speak and that the mediator will decide with the child what will be said to the parents. Sometimes children prefer to deliver the message themselves, supported by the mediator. More frequently we find that children prefer the mediator to convey the agreed message, in language which is agreed with the child. Again much depends on the circumstances and personality of the child.

If DCC seems appropriate, the mediation consultation sessions usually last for around 45 minutes.

Whether children are seen alone or with their siblings depends on the circumstances and the age range. Teenagers often prefer their own space but it is very important that the views of younger children are understood and that one sibling is not held out as the spokesperson.

Child Inclusive Mediation Resources

For tips on talking to your children about separation and parenting through the process, we suggest you consult the website of the family law group Resolution (https://resolution.org.uk)

The author of this post is Kim Beatson who was one of the first solicitors in the country to qualify as a mediator and is accredited to consult with children.  She was the first person to win the prestigious Family Law Dispute Resolution Practitioner of the Year (2011).  She is a Band 1 Mediator in Chambers & Partners where she is described as “an outstanding mediator who has a huge amount of emotional intelligence”.  For information about her mediation service please contact her at kim.beatson@anthonygold.co.uk 020 7940 4011.

Publicity and financial remedy proceedings

In July 2017 Fam Law 000 I wrote an article on the approach the family court was taking to issues of publicity in financial remedy proceedings.  This followed the keynote address by Mr Justice Sir Michael Keehan at Resolution’s national conference.  Keehan J reflected there on the ding dong merrily in the High Court between Mr Justice Mostyn and Mr Justice Holman in relation to how publicity should be dealt with in financial remedy proceedings.  At the time of the address an appeal to the Court of Appeal of a decision by Moor J ([2016] EWHC 2073 (Fam) concerning publicity was eagerly awaited.  That appeal decision is now at hand with the principal judgment being given by Lord Justice McFarlane in R v R and Times Newspapers Ltd [2017 EWCA Civ 1588]. The judgment, handed down on 17 October 2017, followed a hearing on 25 July 2017 and was expected to produce valuable commentary on the opposing approaches by Mostyn J and Holman J in their various reported decisions.  Family lawyers eagerly awaited finding which approach the Court of Appeal favoured.

Was it to be the approach of Mostyn J to the relevant rules concerning publicity set out in FPR r 27.10 which states that proceedings “will be held in private except (a) where these rules or any other enactment provide otherwise; or (b) subject to any enactment, where the court directs otherwise.  In the DL v SL (Financial remedy proceedings: privacy) [2015] EWHC2621 (FAM) Mostyn J considered the principle of open justice and the hearing of financial remedy cases in public.  He concluded that, unless there are exceptions, these cases should be heard in private and not reported.  He argued that FPR r 27.10 specifically provided that the proceedings shall be heard in private and the media may attend the hearing pursuant to FPR r 27.11 but that does not make the hearing public.  Further that the family proceedings process involves the extraction of highly personal and private information and that in almost every case where anonymisation is sought, the right to privacy would trump the right to unfettered freedom of expression.  Further that financial remedy proceedings are “quintessentially private business and therefore protected by the anomality principle”.  Mostyn J found support from Robert J in Cooper-Hohn v Hohn [2014] EWHC2314 (Fam).  Here the judge was concerned that some litigants might be less than open in the witness box if they found their answers would be on the “nations breakfast tables the following morning”.

However, the opposing view was trumpeted loud and clear by Holman J in Luckwell v Limata [2014] EWHC502.  His approach was:

“In my view the effect of rule 27.10(1) read with sub paragraph (b) is as follows.  It provides a starting point or a default position that in the absence of the court directing otherwise proceedings for financial remedy after divorce will be held in private “duly accredited representatives of news gatherer reporting organisations”.  Normally being permitted to be present pursuant to rule 27.11 but not ordinary members of the public.  In my view rule 27.10 does not contain any presumption of financial remedy proceedings should be heard in private – it is no more than a starting point – a question of whether a given case should or should not be is entirely the discretion of the court.”

However, the Court of Appeal has disappointed us if, with respect, I may say so.  The appeal decision focused on relatively narrow points and there was no broader discussion of the manner in which first instance decisions should be reported in terms of privacy.

The appeal related to a decision by Moor J as long ago as 20 July 2016 where he made a short judgment at the end of High Court matrimonial proceedings concerning a married couple who were divorced in Russia in 2013 but the wife pursued an application under Part III of the Matrimonial Causes Act 1973 and provision under the Children Act 1989. Moor J made fairly extensive reporting restrictions in respect of the original judgment but the husband sought to have these further extended.  The judgment of the Court of Appeal is limited in detail of the circumstances because they decided to uphold the original reporting  restrictions.  The closed judgment, however, sets out the full reasoning.  The husband argued a number of points including that Art 2 of ECHR which protects the right to life was engaged.  The Court of Appeal found that there was no basis for any inference as regards Art 2  in respect of the original judgment.

McFarlane LJ then went on to consider Art 10 of ECHR.  The husband argued that Moor J had erred in his approach to the balancing exercise.  It was accepted law that s 97 of the Children Act 1989 prohibits publication of any material which is likely to identify any child involved in proceedings under that act.  However, that restriction is only available if the proceedings are still live.  The Children Act proceedings had come to an end some time ago and all Children Act orders had been discharged.  One of the points of appeal was the judge failed to give adequate reasons for dismissing Arts 8 and 10 submissions but the Court of Appeal said that that duty fell upon the representatives to raise with the judge and ask him to amplify and clarify his reasons.  No such request was made.  The Court of Appeal endorsed their previous approach in the case of Norman v Norman [2017] EWCA Civ 49 which was published after Moor J gave his judgment.  This reinforced the position that anonymity in appeal cases could not be guaranteed and was different to the approach in first instant decisions.  The principle of open justice in appeals carried great weight.

The Court of Appeal in R v R considered in para 26 that:

“… it is plain that, in reliance upon the general approach of the Court of Appeal which was well known prior to Norman, Moor J, with admirable prescience gave priority to the importance of the principle of open justice with respect to the Court of Appeal judgment in a manner which was, as it turned out, entirely in line with the approached endorsed in Norman.   Mr Sherborne does not submit that Moor J’s analysis was incompatible with that which was now required by Norman; his case is simply that on the facts that present case, it is not possible to afford priority to open justice to the court of appeal process whilst at the same time, adhering to the judge’s order.”

In this case the Court of Appeal considered that this was not a case sustainable if proper account were taken of the pre-judgment submissions. Here Moor J had properly balanced the issues in favour of publication with respect to the Court of Appeal proceedings and he had achieved an overall outcome which rightly looked to cause minimum impairment of a principle of open justice with respect to those proceedings. The Appeal Court therefore endorsed Moor J’s approach which appears to have allowed some description of personal details but far less than would have been allowed by Holman J.  The husband sought for further restrictions to be imposed on the brief details that were given but the Court of Appeal did not agree with this approach.  The fact that this appeal has taken more than a year to be published since Moor J’s original decision may well have benefitted the appellant in any event.