dealing with divorce - Page 7

1.    How mediation has helped couples;

2.    When the mediation process has encountered difficulties;

3.    Were those difficulties in mediation terminal or were they overcome in some way?;

4.    The client’s relationship with the mediator.

How family mediation has helped couples

“Co – mediation’’ – Case example 1.

A lot of couples attending family mediation like to have two mediators in the room giving a gender balance. From the start the mediation sessions may have a lot of tension in the room and arguments following on from when the relationship ended.  It’s really important that your mediators or at least one of them is very good at dispelling any tension in the room.

We aim to focus the clients’ attention on the issues they have raised in the intake sessions whether they are children, financial or miscellaneous issues pertaining to their family situation. Some of the benefits of using family mediation include:

• Resolving family disputes outside of court and through mediation is less adversarial.
• Being in a less informal environment than a court room gives clients the opportunity to make informed decisions themselves.
• If an order is made at court by the Judge there is a possibility that neither party may like the decision.

“Shuttle mediation’’– Case example 2.

When clients cannot bear to mediate in the same room together as in co-mediation, another form of mediation, shuttle mediation, can then be used.  This is where each party is in a different room and the mediator(s) go from room to room working through each issue in turn.

Massy, my co-mediator and I did a co-mediation where there were court proceedings ongoing. The mother was seeking a name change while the father was seeking more contact with two young children. There had been several court hearings before the parties came to mediation. The mother was paying out thousands of pounds for representation at each hearing. The father was representing himself but did not like the adversarial nature of being in court.  At the intake session both parties struggled to be civil towards each other so the first joint session was done as shuttle mediation as were joint sessions 2-3.

A final agreement on the name change and contact was reached in the 4^th session but to our pleasant surprise both parties wanted the final mediation to take place in the same room.  

Both parents had realised that after mediation had ended that both would still need to liaise with each other to arrange contact whether this was on the phone or by email and that even at their children’s wedding they are going to need to get along.  The mediation process encouraged the parties to communicate effectively.

“International Mediation’’– Case example 3.

I received an email from a father who was about to relocate with work in Japan.

The mother and father were not married and the child was 6 months old. The father was paying child maintenance which in the mother’s opinion was not enough. The mother was disappointed that the father was not playing an active role in the child’s life while the father was not happy with the fact that no contact arrangements had been made. Both clients were very reasonable and willing to compromise but they felt they needed an impartial third person present to work through when the father could have contact with the child for the four times he was due to return to London each year.

The mother explained what her monthly outgoings were and that even though the father was paying the suggested 15% of his net income for the one child there was a shortfall. When the father could see the figures of the mother’s monthly outgoings compared to what he was paying as child maintenance which I put on a flipchart the father changed his stance.  The father immediately agreed to increase the child maintenance and would update the standing order immediately. I explained it is good if maintenance can be agreed informally.

Parties can approach the CSA if one parent does not want to pay child maintenance, but in future there will be an administration charge for both parties which can be avoided if child maintenance is agreed informally through mediation.

Time Saved–Cases generally.

Contact, residence and financial issues can be dealt with through the courts but if these matters go to court for final hearings it could take potentially several years to get a conclusion. In my experience if both parties have mediation sessions regularly and both parties are willing to be flexible about what they seek, mediation agreements can be made in a much shorter time frame. If there are children and financial issues there tend to be 3-5 joint sessions. If it is just child or financial issues then there are around 2-3 joint issues. Joint sessions last for 90 minutes. Intake sessions last for around an hour.

When the mediation process has encountered real difficulties

Child Abduction – Case example 4.

In an intake session it was clear that both parties before they separated were in very high conflict.

The mother had also raised issues that the extended family for the father were making life too difficult for her. Despite this both parties initially wanted to mediate.

The father was having limited contact at a car park or by lifts inside a flat for 15 minutes every alternate weekend. The mother wanted to return to Pakistan with the child while the father wanted to prevent this.

In the first joint session it was agreed that the future contact sessions would take place in a more appropriate venue and that contact would be for longer duration. However, after the first session mediation stopped as both parties could still not trust each other over the child abduction aspect and passport issues were then raised. It was agreed that both parties would return to their solicitors and go to court. In most cases we reach full agreement on all of the issues raised but sometimes it may be that agreement is reached on say 6 out of 8 issues and the remaining issues are dealt with through the court.

Financial Disclosure – Cases generally.

In mediation some parties want to use the process to decide how the financial assets accumulated from the marriage or cohabitation will be divided.  After the intake session we give both parties a financial form to complete which details all of the assets and debts along with current and future projected income and outgoings. Generally both parties understand and cooperate to give full and frank disclosure before discussing settlement options. However, where one party is convinced that the other party is not disclosing substantial assets the mediation process cannot go any further and it may be that the clients have to use the court process to reach a conclusion.

Delay – Cases generally.

Most couples come to mediation wanting to reach a quick solution to their issues. However, some people have approached us to use the process as a delaying mechanism. In these circumstances mediation would not be suitable, particularly in cases where one parent has not been having contact with their children for a long period of time.

In mediation cases where difficulties came about were the difficulties terminal or were the difficulties overcome in some way?

Contact – Case example 5.

One couple approached me as a contact order had been prepared at court but it was not defined as to how the weekend contacts and holiday contacts should be structured.

The court order provided that contact should be shared on an equal contact basis. We looked at the work schedule and commitments of both parents and the children. It was difficult for weekends and holiday contacts to be divided equally. It was possible but as the contact would mean a lot of travelling for the children on a Sunday night it was agreed that practically this would not be in the children’s best interests as they would turn up for nursery and school on a Monday morning exhausted.

For the current year 2011-2012 the contact the father missed out on at weekends was increased during the holidays. We also discussed finances in mediation.  It was agreed that the father would look to relocate closer to the mother within the next year so that for the following year 2012 – 2013 weekend and holiday contact could be done on a shared basis.

Men often report that they feel they are being  judged by yet another female in mediation. Do you have any advice?

As mediators we are trained to be impartial whether clients are male or female. As a mediator I am not there to judge the father or the mother but am there solely to help reach an agreement in terms of children contact, residence or how to divide the financial assets from marriage or cohabitation and any other issues such as relocation which is happening a lot more in this day and age.

We do not have telephone conversations with the clients in between mediation sessions to avoid being seen as biased or judging towards one party.

I think that the mediation intake sessions are very important.  It is an opportunity for both clients to assess the mediator to see if they feel they can work together.  In some cases the clients are going to see the mediator for around 6 sessions in total so they need to be comfortable with the mediator.

It is also worth remembering that mediation is a voluntary process so if clients feel that they are not making real progress then they may have to consider other options to resolve their issues.

Austin Chessell is a family mediator at FAMIA (www.famia.co.uk) which covers Inner and Greater London. Austin is also a family solicitor at Shortlands Solicitors (www.shortlands.co.uk) at Hammersmith, London.