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Mediation - A different route to divorce

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By Mark Young

It is a sad fact that around 40% of marriages end in divorce. The actual process of separating and divorcing is relatively straightforward, and it is possible for a couple to complete the task themselves, without professional help, for a little over £400 in Court fees.

However, few couples manage to do this, because they are scared, they don’t understand the process or they don't know what the Courts will require, and their relationship can be highly emotional, lacking in trust or can have, quite literally, become a battleground.

To protect themselves, most couples turn to solicitors in the hope of getting as good a deal as they can. Solicitors are not allowed to act for both sides, as they are obliged to act in their clients' best interests and representing both parties would, of course, be a conflict of interests.

Therefore, each separating couple has to use two separate sets of lawyers, and the bills soon mount up. This is at a time when the income and wealth of one household has to be stretched to provide for two.

Solicitors are very necessary, but they do not always reduce stress. The code of practice of the Solicitors Family Law Association talks of clients seeing "assertive letters between solicitors as aggressive declarations of war.” The difficulties are obvious, and I have seen the distress they can cause first hand.

The government has been aware of these problems for some time, and the Family Law Act 1996 was brought in to steer more people into mediation to resolve the problems of divorce and separation.

The move towards mediation was given further impetus when, in 1999, Lord Woolf produced his important report called "Access to Justice". It set out a number of shortcomings he found in the current legal system. Amongst other things, he found it to be:-

  • Too expensive
  • Too complicated
  • Too adversarial
  • Too slow

Lord Woolf suggested mediation in appropriate cases as a way to overcome these shortcomings.

What is a mediator, how does mediation work, and in what way is mediation a good alternative to the traditional route to divorce?

A mediator is an independent and neutral negotiator, who is able to talk to both sides and who works for the benefit of the whole family. As there is just one mediator, he or she will have a clear idea of the feelings, wishes, hopes and fears of both parties.

As there are not two lawyers sending demanding letters to each other, the process can be quicker, less expensive and less aggressive. This last point is particularly important where children are involved, because the parents will have a continuing relationship for as long as they both are providing parental care.

The mediator will gather all the relevant financial information and, by using his or her knowledge and negotiating skills, try to draw the two sides together into a sensible, fair and practical agreement that will be acceptable to both of them and to the Courts.

This may mean moving them from their entrenched positions (typically "She's not getting her hands on my pension" and "If he thinks I'm going to move out of this house, he can think again") to whatever solution is in the best interest of the family.

The different types of mediation available

Family Mediation is the most widely practiced form of mediation in the UK and has many successes. Many practitioners work for charitable or 'not for profit' organisations, making them amongst the least expensive options. There are schemes for those with very limited wealth and low incomes, which are effectively free to clients as their costs are centrally funded.

Generally, the family mediator will see both parties together and, over a number of sessions, work out an agreement for the division of assets, spouse and child maintenance, and so on. When an agreement is reached, the mediator will prepare a summary for each spouse, and this will be handed to solicitors for translation into a Court document.

Without doubt, Family Mediation provides an extremely valuable and necessary service, especially to those who could not afford a more expensive alternative. But I have some small reservations about it.

First of all, it can be a daunting process for the two parties to face each other across a table and discuss what future arrangements should be made. Because of the lack of confidentiality, the settlement may not reflect entirely the wishes and concerns of both sides. Additionally, whilst this form of mediation is not expensive, often it leaves considerable work for the more costly lawyers.

Let me quote one example arising from the experience of an acquaintance. She and her husband attended six ninety-minute sessions of family mediation, which they considered good value. In that time, they reached agreement on how their assets should be divided, and she felt mediation had worked well and had been very cost effective. The problem came when the summary was passed to solicitors as, eighteen months later, they were still fighting over finances.

I should declare an interest here as I practice a slightly different form of mediation. First of all, I am very happy to see the two parties separately (if that is what they prefer), enabling and encouraging both sides to speak openly and in confidence about their hopes and fears. This is particularly important in cases where one party is more controlling than the other.

There was a case where the husband insisted that he and his wife were both present at the initial meeting, during which he produced a sheet of paper listing the family assets and how they had agreed they would be split. His wife looked surprised at this, and the mediator found out later that she knew nothing about it. Needless to say, the mediator put the husband's proposal to one side.

Secondly, I extend the mediation process to producing the Deed of Separation or Separation Agreement and very strongly encourage my clients to take this to solicitors so that they may ensure that it is correct – for the client's protection, as well as mine.

However, where clients are already in proceedings, I am precluded by law from producing this Deed or Agreement. In such cases, I draw up a document which is easy and thus, one hopes, not expensive for a lawyer to convert into the required agreement.

There is one type of solicitor that can act for both sides in a matrimonial dispute and that is the specially trained "solicitor mediator". The advantages of such mediators are that they have the knowledge acquired through being legally qualified and legal fees will be significantly reduced from the norm.

The relative disadvantage is that they are still inclined to charge standard solicitors' rates. The other potential problem is that often a solicitor mediator is instructed by the parties' own solicitors, so there could be a total of three legal bills.

Not long ago, some members of the legal profession started practicing "collaborative law". This is where both sides and their lawyers sit round a table and endeavour to thrash out an agreement. I like to think this is in response to the emergence and success of mediation, and it must be better than having offensive letters continuously being exchanged. However, you still have to have two teams of lawyers and, should the collaboration prove to be unsuccessful, new lawyers have to be appointed as the existing ones are not permitted to continue – which, I suppose, is an incentive to make it work but could still result in higher legal bills.

Mediators can come from a variety of backgrounds.

I happen to be qualified as a Chartered Accountant, and I know a mediator who was in the army and has a first class honours degree in law. Another started as a solicitor, rose to be a family division judge, but is now a mediator. Others have had long business careers.

We don't pretend to know everything and, if we have a problem and need legal advice, we are happy turn to solicitors for clarification and guidance.

The prime requirement to be a mediator is an abundance of common sense. What we all are trying to achieve for our clients are sensible agreements, reflecting an understanding of the situation of the parties, combined with a knowledge of what the Courts will accept. I am pleased to say that mediators are successful in most of the cases that we take on.

Finally, let me finish with two quotes. The first is from The Which? Guide to Divorce:

"Couples who have successfully resolved their disputes wisely, efficiently and cost effectively through mediation certainly need no convincing of its benefits in comparison to costly, time consuming, antagonistic litigation processes which lead only to pyrrhic victories".

The second is from Lord Woolf who said: "Skilled mediators are now able to achieve results satisfactory to both parties in many cases which are quite beyond the powers of the lawyers and the courts to achieve".

For further information on family mediation services, contact your local Citizens Advice Bureau, or look in your local phone book (often listed under 'Counselling'). Alternatively, you can find a mediator in your area by visiting National Family Mediation’s website or by calling them directly on 0300 4000 636.

CASE STUDY

Case 1

A policeman split from his second wife after a very short marriage. He had moved out shortly after the birth of a daughter. His wife was extremely hurt and upset that he was having very little contact with the baby. Although she did not want the marriage to continue, she did want the child to have a reasonable relationship with his father.

Because the family income was above the threshold, the couple were not eligible for free family mediation, and they saw one of my colleagues. She agreed a fixed fee at the outset, and began to assess their current financial situation and their likely needs for the future.

The husband was not an easy person to deal with. He was very volatile and controlling, and wanted things done his way and in his own time. In the course of their individual confidential meetings, the mediator discovered that the husband was extremely worried that he was going to have to pay enormous amounts in maintenance for his two wives and three children, and that he was going to be left with practically nothing to live on.

In the end, the mediator managed to work out a settlement that was acceptable and practical for both the husband and the second wife. This was set out in a Deed of Separation that gave both parties certainty as to what their financial responsibilities were. The mediator also got an agreement from the first wife that reduced the amount of maintenance that was being paid for the two children of the first marriage.

As well as having a financial resolution to the dispute, the additional results of the mediation were that the fear and animosity were diffused, the father had good contact with his children, and they were all able to move on with their lives.

Case 2

Not long ago, a builder told me of his experience. He and his partner each owned a house, a bank account, a vehicle and probably not much more, and they decided to make the obvious division of their assets. They went to their lawyers, told them of their decision and wanted this to be reflected in the appropriate documents. The solicitors would not do what they were told and the builder was not sufficiently confident or assertive to keep them on track, so a fight ensued. As a result, they ended up with a bill for £20,000 each, and he was very taken aback when I told him what we might have charged, had we had the opportunity to become involved.

Case 3

We were engaged by a wealthy couple to help resolve their financial affairs, which were reasonably complicated with assets in the UK and abroad. The husband was feeling vulnerable and feared he was going to be a meal ticket for life, and she appeared rather aggressive which we concluded was because of her fears for her future financial security. Generally, they preferred to have meetings together but, on occasions when there was too much tension, we saw them separately. We managed to get them to agreement as to how things should be divided and I am pleased to say that, once they both knew what the future held for each of them, we could see them relaxing and becoming friends again.