CHOOSE MEDIATION TO AVOID THE STRESS OF DIVORCE
8th January 2020 by Kenneth Clarke
The beginning of a New Year is a test of every Family Lawyers powers of endurance, patience and dedication, as they brace themselves for the fallout of couples who have ‘kept it together’ for Christmas but then head for divorce once the Christmas decorations are down and the kids are back at school.
The first Monday after the New Year acquired the title Divorce Day or Divorce Monday, because solicitors can experience a surge in divorce enquiries on this particular day and indeed throughout January.
Divorce is one of the most heart-breaking, painful and life-changing decisions unhappy couples will ever have to make. However, the use of mediation can soften the blow, steer parties through the legal quagmire and achieve resolution of child and financial disputes, regardless of how polarised their positions may be.
At Laceys solicitors, Kenneth Clarke and Gemma Burden are highly experienced Family Law mediators, with many years of previous court experience under their belts. Here they reveal 7 key mediation steps to consider which will reduce cost, stress, confrontation and improve the chances of avoiding the destructive road of litigation.
7 key steps on how to make mediation work for you
1. Choose an experienced Family Mediation Council Accredited (FMCA) mediator
An FMCA mediator is one that has achieved the professional qualification for family mediation that has been agreed in the non-statutory regulation framework for family mediators (the Standards Framework).
An accredited mediator has demonstrated their ability to “practise proficiently and ethically as a family mediator.
2. Agree as much as possible with your ex-partner before you start
The more issues you can resolve with your ex-partner before you start, the less time you’ll have to spend in discussion with the mediator. Less time equals less cost.
3. Be organised
Where money or property issues need to be resolved, both parties must complete a financial disclosure form, as full and frank disclosure is the bedrock of financial settlements.
All relevant information must be supplied, so go to your mediation session equipped with documents relating to your income, living costs and assets, including valuations of your pensions, as well as bank and building account statements and details about any debt you might owe.
4. Approach mediation with an open mind and try not to get defensive
Listening to your ex discuss their version of events may seem like a parallel universe that is detached from your own reality of the situation, especially if they are determined to put all the blame for the breakdown of the relationship on you, but avoid argument over the past and focus on your own truth and formulating a plan for the future.
The mediator is the independent third person who is there to still the raging waters and help both parties find a resolution. Who did what has never assisted in devising solutions for the future.
Hard as it may be, avoid going over past wrongs and misdemeanours and instead look for a way to move forward. Remaining calm and trying not to react negatively, maintains a focus on reaching agreement on the main issues.
5. Don’t conceal assets
It may be tempting to squirrel away or hide your assets when you think the ex doesn’t deserve a dime, but this will only create more problems further down the road. If you reach an agreement at mediation and later your ex later discovers that you have failed to disclose material assets, it will likely invalidate the agreement and result in you being taken to court in a claim for a greater share of the assets and there could be costs consequences for underhand behaviour. So be upfront and honest if you want to avoid future recriminations.
6. Create a plan of action
Create an agenda of the main points you want to discuss and work through in mediation sessions, to ensure that all important issues are covered. Think about what you want to achieve and the things you are and aren’t willing to compromise on. Where children are involved, keep in mind what’s best for them in terms of their needs to spend time with both their parents. Try and maintain a good relationship with your ex on a parental level.
7. The mediator will prepare an agreement for you to take to a solicitor
Once a decision is reached between yourself and your ex, your mediator draws up a memorandum of understanding (MOU). This sets out what has been agreed. In cases where the agreement relates to money or property, your solicitor will use the memorandum to create a legally binding consent order.
Statistics show that each year, thousands of people decide to separate from their spouse, with the most recent divorce statistics revealing that 42 per cent of opposite-sex marriages end in divorce.
Many couples choose mediation in order to bring about solutions for issues relating to money, property or children. More than 17,000 mediations are carried out each year in the UK.
Mediation makes sense for many reasons. Very few people relish the thought of compromise with their ex to discuss their most sensitive of issues, but in the family justice system, mediation is now the preferred option to resolving issues.
Indeed mediation is now a mandatory precursor to court because, with some exceptions (e.g. cases of domestic violence), you’ll need to prove you’ve been to a mediation information and assessment meeting (MIAM) before you can proceed to court. If your ex-partner refuses to attend meditation, you should still make contact with a mediator and explain the situation.