As Family Mediation Week draws to a close, David Emmerson of Anthony Gold considers mediation in more depth and looks at some of its advantages for families. Mediation can be a transcendental experience, especially with one of Anthony Gold’s family mediators. The Anthony Gold family team was voted highly commended for family dispute resolution at the 2022 Family Law Awards.
Family Mediation
Family mediation is a voluntary confidential form of alternative dispute resolution. A mediator is a neutral and impartial third party who helps the separating couple reach a negotiated solution to their family problems such as the arrangements for children, finances, property, pensions and capital. It works because the mediator and the process itself encourage people to have a voice and speak freely.
The mediator will also ensure that each listens to what the other person is saying, sometimes in a way you have not done before, so that each participant at least understands what their issues are. One does not necessarily have to agree with what the other is saying, if they did then that would help, but it certainly helps to understand and that leads to effective problem-solving. Unlike a court, it is the participants that decide the outcomes, not a judge.
Information is gathered and verified so that each person’s financial position is clear. Once this has happened, it is the role of the mediator to help agree an agenda of the issues to solve so that a fair and workable outcome is achieved.
Mediation has the advantage of being able to deal with issues relating to the children at the same time as dealing with the finances. In the court process, two separate applications would have to be made as the children and finances are never dealt with together in the court process which is often a considerable disadvantage, as well as very expensive and time consuming. Solving issues relating to the children are often connected to finance solutions too.
Potential problems with mediation
If each person has not fully and frankly disclosed all information and documentation relating to the finances, then the mediation cannot proceed, but the mediator will make every effort to ensure that full disclosure is made as the alternative is invariably the other person issuing court proceedings where the disclosure is ordered by the court.
Mediation sessions at times can be intense, challenging and even upsetting, not least because these issues are invariably very important to both. The mediator will ensure that the sessions never get out of hand and that time is allowed for each to “recompose”. However, the tension that can be caused in a mediation is nothing compared with the pressure and anxiety that a contested court case can bring with the prospect of giving evidence, being cross-examined and someone else [a judge] making a decision about your children and your finances.
Types of mediation
The most common form of mediation is where both are with one mediator sitting in a comfortable room where separating couples are free to discuss matters in a relaxed atmosphere.
In some cases, co-mediation, where there are two mediators, can be beneficial because that can help in a case where there are complex dynamics. However, this naturally is more expensive.
Shuttle mediation can be used where there are particular anxieties by one person with regards to safety or coercive and controlling behaviour. Here, both are in separate rooms and the mediator works between each room facilitating discussion.
Hybrid mediation and Using experts
Another advantage of mediation is that both can agree to bring in the expertise of a specialist to help resolve issues. This might be instructing a valuer to value a company, business, or properties. It could be bringing in a pensions expert to work out what the best way for both is to reschedule pension investments. It may well be bringing in an independent financial adviser who can help each person in a neutral way of fixing budgets which can be far cheaper than contested court maintenance proceedings.
Other experts can include divorce coaches and therapists where one or both are finding the emotional side of separation particularly challenging. Hybrid mediation can be used alongside shuttle mediation.
Hybrid mediation can also involve each participant’s lawyer joining in the mediation session to help support and advise.
Mediation is a very flexible process and the use of such experts, although adding to the costs, can be extremely beneficial. It is not necessary to use experts in every case.
Role of the mediator and the lawyer
The mediator can be, and often are, trained family lawyers but mediators cannot give specific tailored legal advice in mediation. They are able to provide key information about what the law is. Sometimes, this legal information can be detailed and very helpful to the participants to help them understand.
It is still important for each participant to have the benefit of independent legal advice from someone like a Resolution accredited specialist. Here, the specialist will listen and understand the background to the children and financial issues.
The lawyer will then explain both what the law is, but also importantly how it applies to the individual person’s particular case, so each person is in a strong position to know how to negotiate in the mediation process. It is also helpful to keep in touch with the lawyer as the mediation process develops. Whereas family case law and statutes can be found easily on the web, the internet cannot tell how the law applies to individual circumstances.
A good experienced lawyer can tell you when you can let go a position or demand or whether your case is strong enough to stick with something.
Safeguarding
Mediators are comprehensively trained in safeguarding and understating domestic abuse. The mediator would not approve a case as being suitable for mediation where there are relevant safeguarding and domestic abuse issues. Mediation is voluntary, and you cannot be compelled to engage in mediation. Safeguarding includes considering the effect of coercive and controlling behaviour. Mediators are trained to deal with an imbalance in bargaining power or indeed bargaining skills.
Children
Naturally, both parents will say the children are the most important factor. In a court of law, the welfare of the children will be both the paramount consideration in children cases and the first consideration in a finance case.
However, parents can often have differing views as to what is best for their children and what arrangements should be put in place for the children to spend time with each parent. In mediation, it is important that the views of each individual child are taken into account.
This can be done in a number of ways and one of them is for a mediator, who is specifically trained in children issues, to speak with the children individually on a confidential basis and the children’s views fed back into the main mediation.
In many cases, this is not necessary but in certain cases it can be vitally important, particularly with children of a particular age and viewpoint. This does not mean that the children themselves are making decisions, but simply that their views, uncomplicated by the pressures of speaking with either parent, are known and taken into account.
In child arrangements, it may well be in difficult and complicated cases that interim arrangements need to be put in place and tested and then reviewed so a mediation process can be staggered, so there is a review after three or four months with a further session.
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.
Outcomes
Both research hand statistical information shows that most mediations resolve issues successfully and that the vast majority of participants are happy with the outcomes and the process.
Costs
The costs of mediation, even if you use a solicitor to support and assist you throughout, is very significantly less than the costs of a contested court process. The length of the mediation process varies but the number of sessions really depends on how the negotiations develop and also how complex the issues are.
It is not uncommon for matters involving children and finances to be resolved in two to four sessions, which might be spread over a two to three-month period. This compares very favourably with a fully contested court process, which can often take 12-18 months.
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
- ‘David Emmerson is a calm, reassuring and experienced hand who will steer his clients back into safe waters’. Legal 500 .
- ‘David Emmerson – his measured and courteous style is universally admired and welcomed by clients and other lawyers – non-confrontational and solution focused. For a number of years he has chaired the Resolution DR committee with considerable people skills‘. Legal 500 .
- ‘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 a 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’.
