Austin Chessell explains why effective communication between separating couples not only aids the resolution of disputes but helps to keep fees under control
F v F  EWHC 438 (Fam) was a final hearing. It was a financial remedy application in a complex big money case. Mrs Justice Macur’s opening paragraph highlights how millions of pounds in fees were incurred by both parties and that even the Counsel did not want to communicate unless they were in the court room.
She said: “This ancillary relief dispute has been the subject of three substantive directions hearing and conducted at a final hearing by specialist matrimonial leading and junior counsel on each side, instructed by specialist matrimonial solicitors and costing the husband and the wife £2.4m between them. Both the husband and the wife have been surrounded by a legal entourage of at least five personnel throughout the eight days of proceedings in court. I regret that these statistics have not ensured compliance with rules of evidence, the pre-action protocol and FPR 2010 or the spirit of practice direction 25A effective for proceedings commenced post 6 April 2011.
In these circumstances the raised emotions, distrust, entrenched position and consequent waste of court time were entirely predictable. The position has not been ameliorated by the apparent disinclination of Counsel to communicate throughout the hearing save in the Court room itself culminating in the necessity for me to direct the exchange of written closing submissions before I was addressed on the same since otherwise “the usual practice” of providing them just at the moment when the address began would have been followed. It is difficult to conceive that either party can have their expectations realistically managed in such a scenario.”
Whether they are dealing with big money cases or not, family practitioners will be familiar with the antagonism between the parties which seems to have migrated to the respective legal teams despite the introductions of MIAMs on 6 April 2011. The above quote is a salutary reminder of the need for the parties and their representatives to communicate.
In my family mediation practice I am heartened at the amount of cases where parties that both hold entrenched positions and raised emotions at the intake meeting and early joint sessions then go on to reach a full agreement on the issues raised.
In a recent mediation at my practice, a mother had recently moved out of the former matrimonial home in Surrey. She was looking to relocate in the south of England with the son and wanted him to reside with her during the week. The father worked at home on a self-employed basis and he wanted the son to live with him during the week. After finding domestic violence leaflets in the lounge, the father was concerned that the mother was going to make domestic violence allegations against him as an argument to aid her contact case. The mother was concerned about the father’s choice of activities with the son because the son, who was less than ten-years-old, regularly told his mother, “dad is taking me to the pub this weekend”.
The mother explained in the mediation joint session that she did have a domestic violence leaflet but only because they were provided to her as part of the information given to her at an initial consultation from a solicitor as she wanted to know her legal rights. She said that the leaflets were not of interest to her and acknowledged that there had never been domestic violence in the relationship. The father when hearing the mother’s child activity concerns agreed that even though the child was taken to the beer garden and not inside the pub, other child activities such as going to the cinema or the park would be more age appropriate.
After this session the parties realised that the son was picking up on the tension of both parties not compromising and a shared care plan was then agreed whereby the son would live with his father in the week and his mother was happy to have more contact over the holiday periods. Mediation encouraged communication which improved understanding and resulted
With many couples, one party wants to discuss financial matters as the main issue first while the other party is interested in contact matters as they may not have seen their children for a long time. In these cases the parties either decide to split the joint session of 90 minutes into proportions of children and financial time. Or it is agreed that financial and children matters need to be fully discussed before any agreement is documented into an memorandum of understanding, which is the mediation agreement. If there are finances then a financial summary is also prepared.
For high value financial matters mediation can also help to improve communications. In one case, throughout the marriage the husband had been the higher earner. He was established in his career but towards the end of the marriage he returned to his studies. The wife who was mainly a housewife started to work in a company but was given some shares by the employer.
The wife was then at the right place at the right time when an announcement was made at work that the employees had the option to cash in some of the shares for several hundred thousand pounds. Just after this had happened the parties separated. There had been recent domestic violence so this case was mediated on a co-mediation shuttle basis. Shuttle mediation is where both parties are in separate rooms. It is not something that I promote but sometimes it is a good option as the couple do not want to be in the same room.
As part of the agreement it was proposed that the wife would pay the husband a lump sum of the fees already received from the shares but she would be entitled to the full benefit from any further shares from the company. This was a high conflict case where at the start of the case the wife was saying that she was prepared to leave the company so that no one would benefit from the shares. The financial disclosure was also completed in two 90 minute sessions which from my experience is a lot quicker than disclosure through a Form E document which often takes much longer.
In another financial case a cohabiting couple came to mediation because the mother wanted to separate from the father. The mother had become disillusioned by the relationship. She had qualifications but had not worked for many years while the father was a wealthy businessman who worked with technologies.
It was agreed that the flat, where the rent was over £100,000 per year, would be retained by the father and he would look to buy a holiday home in the Mediterranean where the mother could visit with the child for holidays. The father would also purchase a flat for her and the child in a commutable distance to where the father lived until the child reached 18 years old. It was also agreed that the property would be near to where the mother’s grandfather lived to assist with the childcare.
In some cases Agreement may be reached on about 85 per cent of the issues and the couple decide to go to court on the remaining points. In these situations at least the issues have been narrowed for court proceedings
When couples come to mediation it is explained that there will be an intake session which is done with each party individually. There will then normally be between three and five joint sessions depending on whether children or financial issues are raised. This means that the parties have an idea in mind before they start mediation of how many sessions there are likely to be and the joint sessions can move as fast as the couple want. Costs are therefore more tightly controlled by, and affordable to, the parties.
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