Court v Mediation – A Case Study in Nine Coffees
The benefits of mediation are countless. As we have explored in other blogs and materials for Family Mediation Week 2020, mediation works. It can be used to achieve more constructive outcomes and help ex partners be the parents they want to be post separation or divorce. As a family lawyer and a mediator, I have seen first-hand the benefits of mediation over the traditional court process.
Here I use a fictitious example to show how the two approaches differ, and how the outcomes can look very different.
Best friends Ali and Priya have both been having a rough time in their marriages recently, and over Christmas they each decided that the time had come to file for divorce. They both work part-time and have ten-year-old daughters who have big exams next summer. Both visited solicitors in early January, who talked them through the divorce process and the pros and cons of different dispute resolution models, including mediation and court proceedings.
Priya chose to enter mediation, whilst Ali and her husband went through the traditional court process. They agreed to meet for a coffee once a month to compare notes on how things were going…
Priya – “We’ve sent a draft divorce petition to Sam’s lawyers. They are still looking at it but we don’t expect it to be a problem. My solicitor thought that mediation would be a good option for us, so I met with a mediator on Tuesday. I don’t know. Sitting down in a room with Sam to try and work out our finances is going to be hard, even with someone else there to help. But I did feel that she really listened to me and understood my worries at least. It’s got to be worth a try. She said one thing that really stuck with me – that people who agree a plan in mediation generally come out a lot happier and stick to it because they had a say in the outcome and take ownership of it. I like the sound of that. I hate the idea of going to court and a judge telling us that we have to sell the house or something. At least this way we can decide for ourselves what’s best, even if we both have to compromise a bit.”
Ali – “Ha, good luck with that! I got the mediation spiel too. There’s no way Chris is going to compromise. The only way I’m going to get a fair deal is if a judge makes him. I’ve been to see a mediator too but only because you have to get them to sign off your court form. That’s all done now so we’re going to send it off with the divorce petition once all the wording has been agreed. Let’s see what happens after that.”
Ali – “So we got the court papers back this week. We’ve got a first hearing on 23 May, the day before Nicky’s birthday! I’m supposed to be running around sorting out balloons and party bags that day, not listening to lawyers picking over the details of our marriage. Oh well, I guess I’ll just have to be a bit more organised this year. God, I hope Chris doesn’t think he’s coming to the party. I’ll need to get my lawyer to write to him to tell him not to come. Anyway, they’ve given me this massive form to fill in with all my bank account details. It’s not like I have much to put in it – everything’s in Chris’s name. We are supposed to swap forms by 18 April. Obviously, I can have mine ready much quicker than that. My solicitor says that we can invite Chris to exchange sooner than that but if he wants to wait until the deadline there’s nothing we can do about it. How’s mediation treating you?”
Priya – “We had our first session together about three weeks ago. It was quite administrative, you know? She went back through all the stuff from the intake meeting – confidentiality, that sort of thing, then said we’d need to exchange information about our finances, just like you. We agreed that as I only have my bank accounts and savings I would hand over a copy of those and Sam would do a spreadsheet of all his stuff. We also had a chat about what other information might be helpful, so I’ve got homework to get some estate agents round the house and see a mortgage broker to see how much I could borrow. Sam’s quite keen to get on with things too so we agreed to try to get everything ready for the end of the month and then have a second meeting the week after. Hopefully then we can start to make some progress.”
Priya – “Well that was intense! We’ve had two mediation sessions since last time. I didn’t feel we made much progress at the first one. Sam had obviously seen his solicitor before coming in. That’s fair enough I suppose, I mean I spoke to mine too. But he came in saying that he had been advised what I was entitled to, that any judge would say that the house obviously had to be sold and I that I would need to start working full-time by September. I was a bit shell-shocked to be honest. I thought we were there to discuss things, not make legal arguments. But the mediator handled it really well. If it had just been him and me I would have walked out at that stage, but she told him she wanted us both to put outcomes to one side for a little while and just talk about what was important to us and to try and explain why those things mattered to us and what we worried would happen if they didn’t. I don’t think he got it initially but I let him go first and by the end of the meeting I think he understood. It turns out, and I didn’t know this, that they’re thinking of closing his office down and relocating everyone to the Lewes office. He said that if I keep the house he won’t be able to raise a deposit to buy something there and he worries that he’ll end up only being allowed to see the kids every other weekend, whereas if we were selling the house anyway then maybe I might think about moving up there too. I’ve got no intention of moving to Lewes, but at least I started to understand why he was so fixated on selling the house and that maybe he wasn’t just being deliberately difficult.
“The second meeting was completely different. He had clearly gone away and thought about it a lot and came in with this bullet point list of what mattered to him, like wanting to be able to buy and not rent, he wanted to live close enough to the kids to see them after school twice a week and all this stuff about not wanting to be an absent father. And then I was able to explain what I want – the security of knowing I own somewhere, not having to go begging him for money, why it’s important for me to be at home when the kids get home so that I can help Saffy prepare for her exams. I mean, I still don’t know how we find a solution that ticks all our boxes but at least he actually listened to what I had to say for once.
“Anyway, we’ve agreed to put things on hold for a little while. The company is supposed to announce its decision just before Easter so we’ve agreed it make sense to wait for that. Then it’s the Easter holidays so obviously we don’t want to have our next meeting until the kids are back at school. In the meantime, Sam has said he is going to research how much houses cost in Lewes and what schools they have there. I’ve told him to see whether there is anyone recruiting around here in case he didn’t need to move, and he’s asked me to see whether there would be any jobs for me around Lewes, which I’ve agreed to only because it felt unfair not to. But enough about me, how’s court?”
Ali – “Nothing to report. Our forms aren’t due for another month and Chris hasn’t replied to our request to exchange early, so I’m not rushing to fill mine in”
Ali – “We’ve finally exchanged our court forms. I don’t really know what all the fuss was about, I mean it’s pretty much just the house and his bank statements. My solicitors are going through it at the moment and want to put together some more questions for him – there are some quite big cheque payments from his bank account that aren’t labelled and he’s spent a lot on his credit card but we don’t have the statements and so can’t see what he’s spent it on. Apparently they put together a list of all the questions and the judge at court will decide whether he should answer them or not. The big issue for me is the house though – he’s said it’s worth what, maybe a hundred grand less than it is? Definitely a hundred less than Sue and Pete sold theirs for last year. My lawyers say if we can’t agree an amount then we’ll need to get the court to order a surveyor to come in and do a valuation.”
Priya – “Can’t you just get some estate agents to look at it, like we did?”
Ali – “We can, but they won’t take instructions from me because I’m not the owner and Chris hasn’t done it because the form doesn’t say you have to. My lawyers are going to ask if he can organise it, but they don’t even have to send the questions for a couple of weeks and Chris doesn’t have to answer anything before the hearing, so they say in all likelihood we’ll just end up talking about it and agreeing it at court. Any news on Sam’s job?”
Priya – “Apparently not, so we’ve asked the mediator to push the meeting back a couple of weeks, which was fine, so we’ll see what happens.”
Ali – “Can I just say that court is grim? I’m still getting over it. They said that the hearing was at 10am so my solicitor told me to be there for 9 o’clock. Turns out that the judge had seven hearings at ten o’clock and mine was sixth in the list, so we didn’t actually go in until 12.30. In the meantime all the meeting rooms were taken so we had to sit in a little huddle at one end of this busy waiting room and Chris and his lawyers sat upstairs in a different waiting area. Everyone could hear what we were talking about and I couldn’t help but hear everyone else. Most of them were talking about seeing their kids and all the stuff they said their ex had done to them or their children – it was pretty horrible. Anyway, the lawyers were going back and forth and talking in the stairwell trying to agree the list of questions and which estate agents were going to value the house and stuff. The actual hearing wasn’t so bad because by the time we went in the lawyers had agreed everything so I just had to sit at the back while the lawyers talked the judge through what had been agreed and he thanked us all for working very hard and sent us home.”
Priya – “That sounds like a waste of time. Couldn’t they have agreed that all weeks ago and not had to go to court at all?”
Ali – “A very expensive waste of time and yes, they could. My lawyers said that sometimes people agree things in advance and just email the court an agreed order, but some courts won’t let you do it and anyway it only works if the other person’s lawyers are prepared to do it too, which Chris’s weren’t. They tell me the next hearing is going to be on the first available date after 16 September. They couldn’t say exactly when, I guess I’ll find out in the next few weeks, but at least they asked me whether I had any dates to avoid this time so I could make sure it doesn’t clash with any birthdays! How’s mediation? Equally bad?
Priya – “Actually the mediator’s office is really nice. No, the good news is that they are not closing Sam’s office, so we can forget about all the Lewes stuff now. I’m so pleased that we waited to find out even if it did mean putting everything on hold for a couple of months, and the mediator didn’t seem to mind us moving things around at all. We’ve had another meeting since then and although we took a little while warming up we went back to our key concerns and made a list of all the things we could agree on – keeping the children in their current schools, both wanting to own and not rent if possible, that sort of thing. There are still some other things that we’re not completely agreed on, like whether Sam needs to live near the current schools and whether we can afford for me to stay part-time, but they feel like individual questions to resolve now rather than trying to work everything out all at once, you know? Just a bit more bite-size and manageable. We’ve been given some more homework to look at the prices of properties near the schools and further away and for me to get more information about what I could borrow if I went full-time. We are meeting again in a couple of weeks and I have a good feeling it might be the last time!”
Priya – “We did it! When we looked at the property prices and the mortgage information you could see that it should just about be possible for me to buy Sam out of the house but only if I worked full-time. I went into the meeting feeling really miserable about that and then Sam said that he had been giving a lot of thought to what I said about being home to help Saffy out with her homework until she had finished her exams, that he could see it would be really helpful for her and that he wouldn’t want to disrupt things by making us move either. Then he suggested that he could rent for the next year or two as long as I agreed that I would start looking for full-time work once the exams were over. It was his idea! I can’t believe that three months ago he came in saying his solicitor told him that any judge would expect the house to be sold and now he’s offering to rent so that I can stay there! Obviously I had to accept some compromises on other things, but I don’t care, I’m thrilled. Staying in that house is so important for me and the kids and that’s what we’re doing. The mediator has written it up as an agreement and now the lawyers are going to turn it into a binding order for the court to approve. Talking of the court…?”
Ali – “Well the good news is that we now have a date – 24 September. Apart from that I’m still waiting for Chris’s replies to our questions and the estate agents’ reports.”
Priya – “Our consent order is all written up and agreed and sent off to the court. You?”
Ali – “No real surprises in Chris’s documents. He didn’t really answer the questions but it’s not like he has any secret bank accounts or anything – we know roughly what’s there. The estate agents said pretty much what I thought they would. It’s pretty obvious they would, I don’t really know what he thought he was playing at putting such a low figure in his form.”
Priya – “So now you just wait until September?”
Ali – “Yup. We just wait.”
Priya – “So what does Chris actually want?”
Ali – “I don’t know. His court form said that he thought the house would have to be sold. Then at court in May his lawyer’s document said that one of the issues was ‘whether or not the house needs to be sold’, so I don’t really know whether he thinks it needs to be sold or not. I would probably take a deal like yours but, like I said at the beginning, I know Chris and he won’t do anything unless the court tells him he has to.”
Priya – “Have you asked?”
Ali – “No, but apparently that’s what this next hearing is about. My lawyers tell the judge what we think the right answer is, Chris’s lawyers tell the judge what he wants and then the judge tells us what he thinks the outcome should be, but in a non-binding way if you see what I mean? So we don’t have to do what the judge says, but my lawyers say that once a judge has said what they would do most people are able to negotiate a settlement quite quickly. We are supposed to put forward proposals a week before the hearing, so I guess we’ll find out then what Chris wants, but my guess is that he’ll ask for the house to be sold and split the proceeds 50/50. My lawyers we should start by asking a lot on the basis that we can then look generous if we make concessions, so probably start by saying that I keep the house and he can extend the mortgage to get a deposit to buy somewhere else Then, later, maybe we could agree to sell the house when the children are 21 to let him have another lump sum, but that letting the children stay in their home has to be the priority.”
Priya – “I thought you said you’d take a deal like mine. How do you get from starting positions like those to what Sam and I agreed? It’s hardly meeting in the middle.”
Ali – “I don’t know, but we’re there to negotiate so… I guess we negotiate? The lawyers will be doing all the talking and they do this professionally, so I’m sure it’ll be fine.”
Priya – “Well hurry up. I’ve got my court order now, it’s final, so I want you to have yours too so we can move on and talk about something else for a change!”
Priya – “You don’t look happy. Didn’t you settle?”
Ali – “Yes we settled, but it was a disaster. The judge agreed with Chris – she said it wasn’t fair for him to wait ten years for his share of the house when there was enough capital in it for us both to rehouse now. After we came out my lawyer tried suggesting other ideas, including a deal like yours, but they just kept saying that the judge said the house should be sold and they were only following the judge’s recommendation. My lawyer said that we were not bound by this judge’s view and that plenty of other judges would take a different approach, but what could I do? I can’t afford to fight this all the way to trial and Chris won’t consider any deal that doesn’t involve selling the house because a judge has told him that he’s right. We got some movement out of him on maintenance but in the end I either had to agree that we would sell the house or get the case listed for trial. So I settled, and now the house will be sold just when Nicky is supposed to be focusing on her exams. I’m devastated, but I don’t know what else I could have done.”