The important thing to remember about mediation is that it is your process. There are many ways that you and the mediator can tailor the available options to make the process one that is truly bespoke. Some of those options are set out below:
- Gathering financial information:
Whether as part of the Court process or when trying to reach an agreement through negotiation, it is imperative that both parties give full and frank disclosure about their financial circumstances. Some mediation clients choose to work with the Form Es (the financial disclosure document required for Court) that have already been prepared with their solicitors; some prefer to work through the financial disclosure together in the mediation sessions and compile a schedule of assets and liabilities with the mediator’s help; and others want to come to the first joint session with an overview of the assets and liabilities to get a feel for whether discussions might prove constructive before completing their detailed financial disclosure prior to further sessions.
Some mediators have set requirements and others are happy to be more flexible. The important thing to remember is that you are each obliged to give full and frank disclosure; and that you will need to agree on an approach that suits you both.
- Solicitors or barristers present during mediation sessions
People often choose to have their legal advisers present at one or more sessions of mediation. Usually this would not be set up until after you have met the mediator for separate intakes, and for at least one joint session. This is so that you have fully discussed and agreed the way forward and the mediator has been able to contact your lawyers.
When legal representatives attend, it can allow for legal advice to be given whilst the discussions are ongoing, and can also potentially allow for a Consent Order to be drawn up at the end of the discussions if an agreement has been reached. If you choose to attend mediation sessions without your legal representatives being present the mediator will still encourage you to take legal advice between the sessions, and generally provides a short note setting out the main issues discussed at each session so as to allow you both to do this.
- Other professional input
In the same way that a single joint expert can be directed to provide information to the Court about valuations of property or companies, or in respect of pensions, you can choose to jointly obtain advice from an expert to inform your discussions within the mediation sessions. Sometimes, if there is a legal principle that is in issue, people choose to instruct a lawyer to provide neutral advice on that issue, which can help them move on in their negotiations.
People are often mediating at a time when they are most upset about the breakdown of their relationship. You may also benefit from the involvement of a family therapist in your mediation sessions.
- Hybrid mediation model
This is a model that combines the disciplines of Family Mediation with those of Civil/Commercial Mediation. It allows (subject to the agreement of all those involved) for you to attend mediation with your legal representatives and even, in certain circumstances, for the mediator to meet with each client/lawyer separately. Your mediator will discuss this option with you if it seems appropriate.
- Child Inclusive mediation
There is a growing emphasis on the ‘voice of the child’ being heard both within Court proceedings and the mediation process. At Court a Section 7 (of the Children Act 1989) report is sometimes directed. If this happens, the appointed CAFCASS officer will meet with your child[ren] as part of the preparation of that report. The experience of most lawyers, however, is that fewer section 7 reports are currently being directed.
A specially trained mediator might, if you both agree, meet with your child[ren] to gather their views about the situation. You generally meet first with such a mediator within one of your joint sessions. They will explain the process and what, if any, feedback you might get from their discussions with the child[ren] so that you can make an informed decision about whether you wish this to take place.
- Someone else making the decision
One of the reasons people choose to use the Court process is that ultimately somebody (the Judge) will make a decision. Whilst a mediator cannot make a decision for you in the event of your being unable to agree a way forward, it is possible to jointly instruct an arbitrator to make a decision. This could be either about the entire situation or just about those narrow issues that you cannot reach agreement on. Your mediator will be able to tell you about local arbitrators in both finance and children act work.
There are a large number of options available to those using the mediation process, and the costs involved in tailoring the process to best meet your needs still generally compare very favourably with the costs incurred in being represented through Court proceedings.
Remember also that the costs of going to Court are not confined to financial costs – the Court arena rarely provides a platform for those involved to be able to communicate more effectively about their children or about financial issues. By contrast, mediation often allows for people to improve their communication and understanding and thus ensure more positive outcomes for any children involved.