Family law update: divorce and mediation

Working as a family mediator with couples, where there are strong emotions between the clients, is very different to acting as a solicitor for one client. The hardest part about arranging the process can be obtaining the willingness of the person who did not propose the mediation. However, explaining to that person what mediation can achieve for them helps persuade them to try.

A lot of mediation clients want to resolve their family dispute and save face at the same time. Mediation allows this to happen.

Agenda setting

It may have been many months or years since a couple have seen each other. Sometimes in the joint sessions I provide something for the couple to eat. It can help to calm the atmosphere in the room if there is silence while both of the couple are eating before setting the agenda items.

One client I mediated with explained to me in the intake session that this may be the last time she was likely to see the husband again, as there were no children from the relationship and part of her moving on would be to not retain contact.

The client was upset that the husband had found another partner and wanted to vent her feelings about this in the joint session. As a mediator I would not allow one client to be abusive towards the other, but this seemed to help to clear the tension from the wife who was then more ready to engage in the financial mediation session.

Relocation mediations where there are children can be very difficult for the parent who is remaining behind, even with generous holiday contact and travel details agreed. In a lot of these cases, the parents have their own solicitors, travel to the session separately and there is no communication between them outside of the sessions.

In some sessions one client can stand up raging and pacing round the room and the mediator has to calmly ask the client to sit down. When asked by the client why do I care about what happens to the children, I have to give a response that remains impartial.

It is often easier for the mediator to focus the clients when there are children being talked about, to ensure that both parents change their mindset from that of a warring separating couple, to one who are both continuing to follow their caring responsibilities for the children.

In family mediation there tends to be three to five joint sessions if children and financial matters are being dealt with. For clients who have a lot of history and deeply entrenched emotions, there are several ways of dealing with this. I work closely with counsellors who have seen clients outside and also been part of the mediation itself.

Also, if the clients want to discuss the past before looking to resolve the issues then there can be more sessions working on a therapeutic mediation model. However, it is made clear to the clients that mediation is a future-focussed process and, as mediators, we are not trained to act as a counsellor or therapist.

A lot of cases are referred to me just days before a final hearing. Family mediation cases do tend to be done in 90-minute sessions over several dates, but there have been some family mediation cases which have been resolved in one day.

Where clients are highly emotional, it can be better for them to have time to reflect in between sessions, rather than agree to something they may regret later when time is of the essence. Also, if the case is complex, it allows time for the clients to obtain legal advice, tax advice and/or pension advice if this is required by them.

Shuttle mediation can be useful where clients find it unhelpful to sit in the same room. There have been cases where the clients started mediation in different rooms and agreed on several issues and then came together in the same room for the final joint sessions.

I am happy to work with the shuttle mediation model, however it does slow down the process. I can convey the message of the client, but I cannot replicate the emotion and the clients cannot see each other's body language. Also, if the couple have children, they are going to need to continue to communicate with each other after the mediation, attend graduations and weddings of the children, for example, which is why if the couple mediate in the same room it can be positive for the children.

Emotionally charged

There are several ways to deal effectively with highly emotional clients. I explain at the start of the joint sessions that when one person is talking they should not interrupt the other person and ask them to agree to this. If emotions do become vocalised during the session, it is useful to remind them not to speak while the other person is talking.

If the tone of the conversation does become heated, it is sometimes necessary to stand up and ask the clients to focus on the issues that they have raised.

Sometimes it just needs someone to tell the clients to be mindful about what they are saying and not to take verbal swipes at each other. If they have children they would not like their children to see them behaving in this way.

We use a flipchart to document what is discussed in mediation. On one occasion, the client wanted to get out how he felt before discussing settlement options, so I let the client write on the flipchart his feelings and then also allowed the other client to do this too. We had a short break and then returned to discuss settlement options.

As mediators, we are not there to keep secrets, so it is best for the joint sessions to see the clients in the same room. However, if the tension becomes high in the room, I have asked to see clients separately, for example ten minutes each, and then asked them to continue together. This can help to get the clients to talk again more constructively.

Every case is different, but clients can be very emotional if one client has found a new partner and the other person in the mediation sessions has not.

The clients can also become very emotional if they feel that there is not much trust between them.

Coming together

Clients may feel that emotions and the difficulty of the issues may mean that mediation is not appropriate. This is rarely the case, but the mediator will carefully assess this at the Mediation Information Assessment Meeting. I would not want to start a mediation if I did not feel confident it would work.

There is always the option to co-mediate the case. I am from a family law background and my business partner, Massy Ellesmere at FAMIA, is from a couple counselling background. I have found it really helpful to mediate with someone from a different professional background, especially in high-emotion cases.

Mediation may present to a client options that are not available at court. I have worked with clients where their parents or relatives have offered a lump-sum payment to settle a financial mediation which the judge would not direct at court.

The couple, if they got married, planned their marriage together; they know their personal circumstances and routine better than anyone else, so it makes sense to attempt to resolve the separation together too.

Mediation clients have commented that they feel that they have achieved more in a 90-minute joint session than in a year of litigating through the courts, which has been an expensive and stressful experience for them. I rarely see mediation clients return to me once an agreement is reached, whereas legal clients may decide to return to court if they are not happy with a court decision so there is no closure on the matter.

Often the clients have a lot of the mediation points agreed which they do not realise, so as a mediator it is important to summarise and reframe key points that the other client may not have acknowledged or taken on board to ensure the clients keep talking to each other.

The Children and Families Bill being considered by Parliament at the moment is looking to change the law so that parties applying to the family courts for a dispute concerning children or finances must consider mediation first at a Mediation Information Assessment Meeting. A line by line examination of the bill took place on the 7 January 2014 and a fourth day of the report stage was due on 29 January 2014.