Tag Archives: Mediation

A Different Mediation Model

Suzanne KingstonSuzanne Kingston explains how mediation’s flexibility as a process makes it ideal for resolving complex and entrenched disputes.

For the last few years, policy-makers and family law practitioners alike have been raising the profile of mediation as a dispute-resolution process in order to try to relieve some of the strain of litigation both on individual families and on the courts. The discussion tends to focus on the traditional set-up of family mediation. This is where two former partners meet in a room together with a mediator for 3-5 sessions of about 90 minutes each, and work out a way forward which is tolerable to both, and works for the wider family if relevant. However, this is not the only way to practise family mediation.

Where a family’s circumstances are more complicated, perhaps because of the scale of the assets involved, the involvement of foreign interests or difficult tax arrangements, the family involved may find that a ‘quasi-civil’ model of family mediation suits them better. This tends to involve the estranged spouses and their lawyers attending mediation for a few days if necessary with a specially-trained family mediator who directs the process and assists the two people at the centre of the dispute to come to an agreement. Some meetings may take place between the mediator and each team without the other being present; some meetings are between the spouses and the mediator only; and some are with everyone together, perhaps to hear from a jointly instructed expert about tax for example, or to negotiate specific points. The process can adapt to the needs of the family involved.

I myself have had several successes as a mediator with this model even where cases involved have been at final hearing stage. One example is where I assisted in a large complex mediation where the parties had jurisdiction issues in the background but were willing to put those to one side in order to mediate, knowing that they could resurrect them if needed in the future. We worked together over four days to discuss all issues – money and children – and reached a successful conclusion which enabled the couple involved to move on in a positive way.

In mediation, of course, all discussions are ‘without prejudice’ meaning they cannot be referred to in court if the process does not lead to a resolution – this takes away the risks involved in trying, and enables everyone to put their cards fully on the table in the knowledge that it cannot be used against them later.

One of the many benefits of dealing with a family dispute in this way is that the couple involved are able to resolve their disagreements at a substantially lower cost both in financial and in personal terms than if they had proceeded with a final court hearing. The semi-civil model of family mediation is not universally practised by family mediators, and is not appropriate in all cases. However, where it seems that all else has failed even in the most complicated of circumstances, it may be worth your while to seek out a civil/family mediator for one final roll of the dice.

Suzanne.kingston@withersworldwide.com

A better outcome for children

IMG_2467EmmaHcropEmma Hatley explains the advantages to parents of keeping their divorce matters out of court if possible.

The end of a relationship is always particularly distressing where children are involved. I have seldom met parents who didn’t feel anxiety about how their children would cope with the changes in their family unit, or a keen sense of responsibility to make things better. Almost everyone wants to put their kids first on divorce, and to do what they can to make it as easy on them as possible.

The problem is that when your relationship has just ended, there are so many things to think about and so many overwhelming emotions to deal with. Inevitably, parents’ perspective can often remain unwittingly focused on the short term – after all, the future is suddenly a different landscape to what you knew before so it’s difficult to look further ahead. Added to that, legal proceedings in unfamiliar rooms with lawyers speaking for you can make people feel that they are not in control of their own destiny, or their children’s, which can add to the pressure.

It doesn’t have to be like this, however. When parents are separating or divorcing, their desire to do their best for the children usually remains their common ground, even if they have different ideas on how this should be accomplished. In collaborative law or mediation everyone is committed to keeping decisions in the hands of the parents, rather than in the rooms of the court. Collaborative lawyers and mediators work on the basis that you know your children best, you love them most, and you are the people most likely to find a solution that works for them. The lawyers, mediators and perhaps in some cases other independent experts too, are there to help, guide and support you towards making those important decisions in the right way for your family.

In a collaborative or mediation setting when I am helping separated parents work out future family arrangements, whether these relate to finances, property, the children or anything else, it is easier to encourage a long-term view because there is plenty of scope for the discussion of possibilities. I, and my fellow Creative Divorce practitioners, aim to develop an understanding that the adults’ relationship as co-parents will continue for the rest of their lives, even where their relationship as partners or spouses may be over. Where this matters to the parents – and it does to most – we help them to consider the effects of any potential decisions on the children, and indeed from the children’s perspective, before finalising a course of action.

I feel passionately that working things through via the collaborative process or mediation give parents a better shot at being able to smile together at a son’s wedding or daughter’s graduation in years to come than the court process does. I have heard from former clients how good it feels to hear, often many years later, that your children are proud of the way you dealt with your divorce. I really believe that wherever collaborative law or mediation are appropriate, they’re worth a try for the chance of a better future.