Legal support in Family Mediation

By Behzad Sharmin, divorce and family finance solicitor

Have you had a letter or a call from a mediation service asking you to go to a Mediation Information and Assessment meeting? Alternatively, are you going to mediation sessions hoping to reach an agreement with your ex-spouse over who gets the family home?

The thought of going to mediation sessions without a top London divorce solicitor with you can be very daunting. Mediation can be intimidating if you are not the one to initiate the mediation or if your ex-spouse holds all the financial information.

Legal support and family mediation

It is often assumed that top London divorce solicitors do not support family mediation. After all, everyone thinks divorce solicitors encourage court proceedings.

The answer is that the best London divorce solicitors do not want all divorcing couples to go to court.

There are some family situations where the only way that there will be finality is by a judge making a financial court order. In other family scenarios, it makes financial sense to reach an agreement in mediation. The mediated agreement is then converted into a binding financial court order.

Many people assume solicitors encourage financial court proceedings, rather than promoting mediation, because the legal bills are more if a couple go to court rather than reaching an agreement in family mediation.

The answer is a lot more complicated than that. I have seen a mediation case where the legal bills were similar to a court case. That does not mean that it was not right to use mediation. The family situation and business were complicated. Ultimately, the couple reached a good mediated agreement with the assistance of an experienced mediator and an accountant. Their agreement was then drawn up into financial court order.

Equally, there are family situations where top London divorce solicitors would say mediation might not be appropriate, such as:

• One spouse refusing to disclose assets and financial information; or

• Serious allegations of domestic violence and safeguards cannot be put in place to make mediation a safe experience; or

• One spouse may hide or dissipate assets unless financial court proceedings are started and interim orders obtained; or

• A spouse has transferred assets to a family member and court orders and injunctions are needed; or

• There are potential third party interests, for example, a trustee in bankruptcy.

Just because mediation may not be an appropriate way of reaching an agreement, it does not mean a couple have to end up in court. There are other options, such as:

• Arbitration;

• Private judge;

• Round table negotiation.

It is worthwhile talking about the sort of mediation that might work for you. There are different types of mediation, such as:

• Shuttle mediation;

• Co-mediation.

Sometimes the difference between mediating working for you or not can come down to something as simple as:

• Choosing the right mediator that you are both comfortable working with;

• Identifying if you need an expert, such as a pension actuary or accountant, to help you reach an agreement in mediation;

• Identifying if you or your spouse are ready for mediation. Sometimes if a separation has come as a shock to one partner, they are not in the right mind-set for mediation and might benefit from counselling. The counselling can take place either before the mediation sessions are commenced or to help support them in the mediation process;

• Choosing the right venue for the mediation sessions.

How does legal support in mediation work?

When I meet someone who has been invited to a mediation information and assessment meeting (MIAM) or to their first mediation session, they often feel quite vulnerable. That can be because:

• They do not know anything about the family finances, as their partner took care of money matters; or

• They think they will be under pressure to reach an agreement; or

• They do not think that they are a good negotiator and that they will succumb to tears or emotional blackmail; or

• They do not know what they would get if they went to court and a judge made a financial court order so they do not want to sell themselves and the children short; or

• They have not seen their husband or wife for a very long time and think the mediation process will be too emotional.

Legal support in mediation is designed to:

• Make you feel more empowered; and

• Help you understand your legal rights and options;

• If necessary, help you gather together your financial information and documents and review any financial disclosure provided by your spouse; and

• Give you information about the range of court orders that a judge might make in your family circumstances. You can then balance the options discussed at mediation with potential court outcomes. That way you can make informed decisions;

• Help you convert any agreement reached in mediation into a binding financial court order.

Does a mediator give legal advice?

Separating couples think that consulting a divorce solicitor is not necessary if they go to family mediation. However most family mediators encourage a husband and wife to take independent legal advice because, if they do so, the couple may be more likely to reach a financial agreement.

A mediator is not able to give legal advice to either party to a mediation. The mediator has to remain impartial. The mediator will not tell you what to do. Their job is to help facilitate an agreement. If an agreement is reached in mediation, they will prepare a document called a memorandum of understanding. This document details the proposed agreement.

How can OTS Solicitors help you?

If you are worried about the mediation, the best way forward is to take independent legal advice from a specialist London divorce and family finance solicitor. Our divorce and family finance team can guide you through the mediation process and help you reach a mediation agreement.

The job of top London divorce solicitors in offering legal support in mediation is to give you:

• Legal advice about divorce proceedings; and

• Legal advice about your financial claims, for example, if you have a claim for a share of the family business or a pension sharing order claim; and

• Advise you about the information and documents you require to reach informed financial decisions in mediation; and

• Talk to you about the orders that a court would be likely to make if you were to ask the court to decide how your assets should be divided. This means you can make informed decisions about the financial agreement discussed in mediation; and

• Support in-between the family mediation meetings to help clarify what was discussed in the session, review financial disclosure and explore your options; and

• If agreement is reached in the family mediation and the mediator prepares a memorandum of understanding that sets out the broad agreement then preparing a draft financial court order and financial statement of information for a judge to approve and make into a binding financial court order.

For advice and legal support in mediation or advice on your financial settlement options please call us on 0203 959 9123 for a confidential discussion.