When is the best time to mediate?
Mediate or medi(wait)?
A couple of years ago, the Family Law @JPFamilyLaw Twitter account shared a picture of a London tube stop where the service information read “Save time! – Destination Divorce. You don’t need a lawyer to get there. Go straight to family mediation. Save stress too!…”.
My response to the tweet was this: “Hmm. [I] think many are sent to mediation without any real understanding of their asset base, potential claims, [and] potential settlement brackets. Surely having some (good) advice would assist in cases where people can’t/won’t agree as they don’t understand the potential claims…?”.
I am a staunch advocate for mediation. Getting the parties around a table with an experienced family law mediator to discuss their issues and endeavour to seek resolution in a time and cost-effective manner is surely better than the alternative.
But is mediation for everybody and when is the best time to mediate? Are all clients able to understand at the outset what route is best for them and really grasp the likely costs of each option? Does the client really understand their asset bases and the potential claims that may affect them dependent upon their values? Can a client be sent to mediation at a time where feelings are just too raw and emotion overtakes common sense? The tube station message prompted a whole host of questions in mind about what makes for an effective mediation.
Setting for the scene for an effective mediation
- Forewarned is forearmed: It is critical that parties go into mediation as well-informed as possible about each other’s assets and their values. I took instructions from a client who had agreed to retain the family home on the basis of the other spouse retaining their pension. This agreement was reached without any real consideration as to the true value of the pension, whether the other party had a pension to be accounted for, whether the scheme was such that there were hidden benefits and so on. It was only when my client took legal advice did she realise that she had rushed into negotiations without being fully appraised of all the detail which had put her at a tactical disadvantage. Thankfully in this case I was able to protect my client’s position by getting the other party to agree to reset the process and engage in full disclosure before re-commencing negotiations.
I now suggest voluntary exchange of disclosure before mediation occurs to safeguard against this scenario arising.
- Timing: Whilst mediation is a preferred course of action, experience has taught me that early mediation, when feelings are raw and parties less informed, rarely works and can even cement the parties in their positions and unwilling to mediate further. Some simply see mediation as a way of further delay and adding further costs to the opposing party; attending with no real aim to settle. Having mediation sessions take place following detailed advice allows the parties to not only consider their positions and ‘brackets’ for settlement negotiations but it also allows the parties to highlight the potential cost consequences of the case progressing to litigation. If mediation occurs at an early stage; it is difficult for the parties to give sense to (often wide brackets) cost estimates given at the outset by their solicitors in taking the matter ‘to final hearing’. In effect, mediation following disclosure and detailed advice allows for more considered offers to be made and discussed with the pressure of cost consequences being clearly set out.
- Cost: The cost point is again one that should not be overlooked. Many clients would seek a claim (resulting in a failed mediation) which should not perhaps be run due to cost but perhaps would be a better tool for negotiation. While it is clear that the costs of mediation would most certainly in most (if not all) cases substantially be lower than that of solicitor led negotiation/ litigation, the wasted cost of mediation needs to be considered where it is doomed to fail for the reasons set out above.
Narrowing the issues and at the same time highlighting the costs consequences of further litigation is the objective of mediation and this can only be strengthened with positive solicitor involvement before (and perhaps during) that process. Clearly, the role of the mediator needs to be held aloft by the solicitors to ensure that the mediator simply becomes a conduit for indirect negotiation between the advocates.
In my view the early advice regarding divorce and financial matters, options and costs, disclosure and mutual exchange, detailed advice and perhaps settlement proposals for discussion should all be undertaken by the solicitor and client prior to mediation to allow it the best chance of success. That obviously requires (up to) four like-minded individuals – both parties and their advisors – to agree, be realistic and to hold aloft the role and importance of the independent mediator (which may not always be possible).
Is mediation for everyone?
Mediation should not be seen as and become a replacement for the court. There will be cases which, even with the best intentions of the parties and their legal representatives, benefit from the court’s imposed timeframes and uniform structure in approach for the parties to adhere to (again as in line with the Resolution Guide to Good Practice which confirms that this should not be seen as an aggressive step, contains guidance regarding providing a client with all options and if mediation is the preferred route; the pros and cons to put to the client).
That said; is it the solicitor’s place to say when mediation should (or even occur at all)? Should it not be the parties and their mediator who determine what can be agreed and perhaps what needs further input by/ through the solicitor?
I fear that many solicitors still see mediation (and the requirement for a party to have a signed MIAM in most cases to commence litigation) as a stepping stone at best and a hindrance to real progress at worse.
The last figures from the Ministry of Justice suggest that just over two-thirds of MIAMS progress to full mediation and the latest (2017) familylawandmediation.co.uk figures suggest that the success rate of family finance mediation is 54%. I feel that it is incumbent upon the profession to help improve those figures; by setting up their client’s realistic expectations and financial disclosure in advance of mediation to improve its prospects of success as discussed above, especially at a time where the court system is increasingly bursting at its seams.