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Mediation - A different route to divorce By Mark Young However, few couples manage to do this, because 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 a battleground.
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 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? 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 use 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 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 to 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 of mine. She and her husband attended six ninety-minute sessions of family mediation, which cost a total of £600. In that time, they reached agreement on how their assets should be divided, and she felt her mediation had worked well and been very cost effective. The problem came when the summary was passed to solicitors as, eighteen months later, they were still fighting over the finances. I should declare an interest here as I practice a slightly different form of mediation. First of all, I see the two parties separately, 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, on reaching an agreement, this will be reflected in a Deed of Separation, so I extend the mediation process to a legally binding agreement. Nevertheless, solicitors remain an important part of the procedure, as clients are very strongly encouraged to take the deed to them for an independent check that the document is correct - for the client's protection, as well as mine. 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 themselves out at standard solicitors' rates. The only one I have dared to ask told me her rate was £140 per hour plus VAT. 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. 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'). For my more comprehensive style of mediation, find out more by clicking here, or call me on 01892 519917. CASE STUDY 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 in his own 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, so 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 set up a voluntary Custody and Residency agreement in respect of the new child. She 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. All contents © copyright www.ondivorce.co.uk - site design www.flatearth.co.uk |
