Mediation Case Study - Family Law Partners

Mediation Case Study

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In this blog post, I will provide an insight into the process of family law mediation in the form of a case summary from a recent divorce and financial matter.

Initial contact with us usually takes place from an enquiry phone call, when the husband, Fred, called to find out about the mediation process. Fred had previously held the, not uncommon misconception, that it is designed to save failing relationships. Mediation is not designed to keep couples together, but to assist them in separating in a positive way. A family mediator is specifically trained not to give legal advice, but to remain an impartial, independent facilitator to discussions between the participating individuals who set their own agenda and reach decisions based on what is important and appropriate for their family.

First Meeting – often referred to as the Mediation and Information Assessment Meeting (MIAM)

The first meeting is between each individual and the mediator separately and on a confidential basis. The purpose is to explain the process so that a decision can be reached as to whether mediation or an alternative option, such as arbitration or Court proceedings will be most appropriate. Even if an individual wishes to file an application to Court, there is now a requirement that they need to first attend a MIAM meeting as it is widely recognised to be far better for families if disputes are resolved by the parties themselves, rather than a decision being imposed on them by a Judge.

I met with Fred first and he explained that Laura had initiated the separation. It quickly became apparent that he had a level of mistrust of solicitors and, although things remained relatively amicable, there were some issues relating to finances that were proving difficult. In this meeting, open questions are asked by the mediator to find out more about the family’s individual circumstances and issues. It is a good opportunity to explore what it might feel like to be in a joint meeting situation and how each person might react to difficult questions or areas of disagreement. Fred was initially concerned that I would seek to ‘tell them’ the most appropriate outcome but once it was explained that the decision would be theirs following information, but not advice, he was keen to get started.

A few days later I met with Laura on the same basis; confidentially and to give her more information about the mediation process. Laura described a relationship very sadly coming to an end and it was clear that she was further on in her acceptance of the end of the marriage than Fred. Both Laura and I were content that the mediation process was appropriate, and we could therefore move to the next stage of arranging the joint meetings. Typical reasons why it might be decided at a MIAMs that mediation is not appropriate include violence or safeguarding concerns, an imbalance of power or bargaining positions or occasionally, one person simply does not want to proceed.

The Joint Meetings

The first item that is covered is to sign the Agreement to Mediate. This incorporates the terms of the arrangement and the most important principles of mediation:

  • It is voluntary
  • Mediators are impartial
  • It is up to the participants to make the decisions
  • Mediation is confidential, aside from if there are any safeguarding concerns
  • There is a shared commitment to the process

Once the agreement has been entered into, the next stage is to set an agenda of the issues that the participants would like to cover.  Issues might include divorce proceedings and who will file the application, the arrangements for children, and/or how assets will be dealt with. Here, Laura and Fred had already agreed to sell the family home, but they hadn’t resolved how the proceeds and some savings would be shared. They were particularly stuck on how much ongoing financial support Fred would provide to Laura on a monthly basis.

The end of a relationship can be emotional, difficult and messy; and inevitably the meetings can feel hard. As expected, the income issue was the most difficult to resolve. We heard from Fred first. He had always been the higher earner and had worked tirelessly to support the family and to provide the beautiful house they now live in.  He felt he had missed the children growing up as a result of his long hours, and ultimately, he did not want the marriage to end now that he could start to enjoy everything he had worked for. He did not see why he should continue to pay for a lifestyle for Laura and the children that he could no longer be part of.

Laura spoke next. She did not want to be reliant on Fred for the rest of her life. She had chosen to reduce her hours when the children were young so that she could be there for them and had unfortunately lost her job in 2020 during the pandemic.  She felt that Fred did not recognise the contribution she had made over all the years he was working by running the household and supporting him and the children.  The interesting thing about this discussion was that Fred and Laura had both had misconceptions about the other’s views. Their aims were not to ‘win’. Laura was not being ‘greedy’, and Fred was not being ‘stingy’; they were concerned about the future and how they would support themselves alone. This understanding enabled them to agree an outcome whereby Fred would pay a higher monthly amount for a period of months while Laura sought work. The level would reduce when it was affordable for her but would increase again if she were to lose that employment. It would end altogether once she had time to ensure she was fully self-sufficient, meaning Fred could retain anything he earned after that time.

If Fred and Laura had been in Court proceedings it is extremely unlikely that they would have been able to have such an open conversation or reach an agreement on the income issue. Court proceedings require each party to take a position, and this will inevitably be the one that is most favourable to them.  This results in any lesser outcome being deemed as a concession or being unsuccessful. The Court would not have been able to come up with the creative, fluid solution they both favoured and instead, would most likely have ordered a set amount of maintenance for a fixed term leaving the door open to further Court proceedings if either situation changed.  The idea of winning at Court is outdated. There are no winners and losers at the end of a marriage, particularly when children are involved, only positive outcomes or negative experiences.  The most desirable outcome is to form a new family structure in an amicable way, and this runs through the core of the mediation process. There were some sticky issues in this case but understanding the fears and emotion that underpinned them ultimately resulted in agreement on all issues. What followed is something I have never seen in over a decade of family law practice; they went skiing together with the adult children, as one big, separated family. Our final meeting, which took place on Zoom, involved virtual tours of one another’s new houses and a chat with the family dog.  I believe this is what is known as a ‘good divorce’.

Alice Scambler is a Consultant Family Law Solicitor and Mediator, based in Kent. To discuss the mediation process and your individual situation with Alice, please contact us.

 

 

 

 

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