Confidante and Co Episode 2 – Transcript

Episode 2 - The many ways mediation can help
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0:00

This is Confidante and Co with Carly James – new perspectives on family law.

 

0:06

Carly James: Welcome to the second episode in a four-part podcast series called Confidante and Co. I’m Carly James, family lawyer and founder of Confidante – a law firm specialising in family law issues such as separation, divorce, and children disputes.

 

When clients come to me facing a relationship breakdown, I will always advise them about the other services and resources available to them. But clients sometimes feel reluctant to engage another service or process alongside the legal process.

 

And this is sometimes due to a fear of the unknown or a misconception they have. And that’s what inspired me to create a series which showcases to those experiencing relationship breakdown some of the services and resources available to them during this difficult time, which can be used to complement the legal process.

 

Engaging other processes can have a myriad of potential benefits, such as a quicker, more efficient, and cost-effective legal process, promoting better relationships with former spouses or partners, and possibly even children – and helping them to reduce what is usually a very stressful journey.

 

I’m delighted to introduce my guest for this episode, Helen Morgan, the manager of Family Mediation Jersey, and Claire Davies, an experienced family lawyer and mediator at the centre.

 

Welcome Helen and Claire, and thank you for joining me on this series to talk about mediation.

 

I thought I would break down our chat into four sections: a brief introduction, a quickfire round of common questions I expect people have around mediation, a section aimed at dispelling myths and finishing off with more specific questions around resolving the financial aspect of a divorce, and how mediation interplays with the legal process.

 

Helen, if I can start with you first, can you talk us through please, at a high level, the stages of mediation from first point of contact?

 

2:01

Helen Morgan: There are various ways that we can be contacted – email, telephone website, or even through Facebook. When you first get in touch with us, what I’ll do is I will discuss the initial process, talking about the initial meetings, I will send out a leaflet to you talking about what our service provides, I’ll send you our terms and conditions and book an intake for you. That’s the initial meeting that you’ll have with a mediator who will talk about the process in more detail with you, then it goes on to the mediation sessions. And then as appropriate, you’ll talk about financials, you may have an outcome statement or a memorandum of understanding, which are terms for the agreements that you may come to.

 

And at the end of the process, there will be a feedback form to complete if you successfully complete the mediation process.

 

2:51

Carly James: And how quickly can clients see a mediator?

 

2:54

Helen Morgan: It’s quite a quick process, it’s normally within a week or two.

 

2:58

Carly James: Claire, what issues can clients tackle in mediation? And what are the three most common issues you deal with?

 

3:05

Claire Davies: Well, lots of different issues. In many cases, clients contact us following a decision to separate or to divorce, because they want to talk about finances or arrangements for their children.

 

But we can cover all kinds of family disputes. So, we also cover intergenerational mediation, which might be a dispute between adults and their own parents so with grandparents, or it might be a dispute between parents and a much older child. And we can also mediate on issues around inheritance, anything really, that can create an argument within a family and we will help you to have a meaningful conversation about that and to hear each other’s point of view.

 

Moving on to what the most common issues are, most of our clients are coming out of a separation or divorce or going into those scenarios and they want to explore how to resolve their finances and issues around their children. They might be worried about what should happen to the home, whether it should be sold or retained, how to divide the proceeds. Or they might need to work out a contact schedule or talk about where their children are going to live.

 

Those are probably the most common types of dispute that we deal with. But whatever we’re doing, the biggest issue is often communication. Whatever else people need to talk about, they need to improve their communication skills, so that they can remember how to solve problems together. And that really, is partly what mediation is about.

 

4:47

Carly James: It’s so fundamental isn’t, communication between parties moving forward into the future, even if they are separating, they’re always going to have to communicate if they have children – so it’s enormously helpful for parties to learn that skill with the help of mediator.

 

And lawyer-led mediation is an interesting concept as well. And perhaps it’s something that lawyers should give a little more thought to. Because if clients are struggling to overcome an issue at mediation, introducing the lawyers and helping them to resolve those issues at mediation could end up in a successful mediation rather than parties abandoning mediation at that point and moving to the lawyers. So having lawyers introduced into the mediation process could help that process enormously.

 

5:40

Claire Davies: Oh, absolutely, lawyers are a great resource during mediation, they can give clients advice, as the mediation is going on whether they’re in the room or not. But sometimes people benefit from having the reassurance of having their lawyer with them, someone who can give them advice, and someone who is advising just them. Because a mediator can’t do that, we are impartial individuals, we will work with both parties within the dispute, we can’t give them advice. So, it’s crucial, that they have access to that person who can not just advise them but help to generate ideas. And that’s something that’s really key to mediation is generating ideas that we can work through in a practical and sensible way.

 

6:27

Carly James: I don’t think it’s probably used enough – the lawyer-led mediation – it’s something that we could focus on as lawyers to help clients going forward.

 

6:36

Claire Davies: Absolutely. And it helps the lawyers too, we don’t go to work every day hoping to have an argument with our colleagues. We want to sort out problems and help clients to do that. And mediation is a great way to use our skills as lawyers to achieve a resolution for people. That’s what we want.

 

6:52

Carly James: And I suppose when clients move away from mediation, and go and take that advice, people can have different ideas or interpret what happened at mediation for having lawyers present when they’re going through that process can probably remove other problems.

 

7:05

Claire Davies: Sure, it means it helps to ensure that everybody’s on the same page. And whether they’re in the room, if they’ve been involved throughout, there is less opportunity for nasty surprises. And again, as Family Lawyers as mediators, that’s something we try and avoid.

 

7:24

This is Confidante and Co – with Carly James

 

7:27

Carly James: What percentage of mediations end in agreement?

 

7:30

Helen Morgan: I think it’s important to understand the difference between agreement and success.

 

It’s possible to have a successful mediation without having a formal agreement in place.

 

The majority of mediations that we facilitate are successful, but don’t necessarily have that formal agreement. So, the participants will agree what they want to do, how they want to move forward, but they won’t necessarily document it.

 

When they do document it, they can have it documented in an outcome statement, or they can have it documented in a memorandum of understanding, they can take that back to their lawyers as well and their lawyers then can draft it up into a draft consent order to go before the courts for their divorce process.

 

So, there’s a multitude of ways in which a successful mediation can be completed. In addition, we may get clients who return to us because the mediation that they’ve had before has been successful, but things have changed, situations have moved on the children who have grown up, and they now have a new situation that they find themselves in that they now wish to mediate.

 

So, they’ll come back to us and mediate again. And we also get new clients coming to us that have been referred to us by previous clients, proving that their mediation was successful, too. And parents who are mediating with us choose to involve the children in the process in a child inclusive mediation, again, confirming that the mediation that they’re doing is a successful mediation process.

 

9:06

Carly James: It’s a good point that – how you measure success, any progress that you make in mediation is a successful mediation, because it limits what you need to deal with, with the lawyers or through the courts so I think it’s a good point, Helen.

 

So, if we can move on now to a quick-fire round of common questions people may have. We haven’t got very long, but I want our listeners to glean as much information as possible from you. I’m going to ask some quick questions, if that’s okay, starting with you, Helen.

 

How do you choose which mediator would be a good match for clients coming to mediation?

 

9:42

Helen Morgan: All our mediators would be a good match for all our clients, because they’re all trained. They’re all professional mediators. So, what we’re really looking at is the mediators’ availability, balancing the mediators’ workload, and most importantly, making sure there’s no conflict between the mediators and the clients because we need to ensure that the mediators can facilitate and be neutral when they’re doing so.

 

9:58

Carly James: Some of your mediators are legally qualified. Should a client feel disadvantaged in any way if their mediator isn’t legally qualified, Helen?

 

10:10

Helen Morgan:  No, all mediators understand the need for fairness when they’re facilitating settlements, all clients are advised to get legal advice as part of the mediation, and most certainly before agreeing anything with the other party.

 

Most importantly, mediation is not a legal process. And it doesn’t require legal skills. All mediators are from different backgrounds, some work in business, some in health, some with children, and some come from counselling backgrounds.

 

Whilst we’re fortunate that some do have legal knowledge, when they come in as mediators, they’re wearing a different hat and working in a different way. So, they’re working according to the mediation process and the mediation training when they’re doing so.

 

10:56

Carly James: What happens if one of the parties wants their own mediator? Is that possible?

 

11:01

Claire Davies: One of the crucial things about mediation is that the mediator is impartial. So, what we don’t do is to allocate one mediator to work with one person and a different mediator to work with someone else. Because that would not fit with that central important feature of making sure that that individual is impartial and working with both parties during the mediation.

 

Having said that we do quite often travel in pairs. So, it’s quite common for us to co mediate a case, particularly if it’s tricky and we’ll work as a team with both clients, so we don’t separate them out.

 

What we can do sometimes is shuttle mediation. And that’s where the clients for whatever reason, don’t feel comfortable in the same room. Where that happens, we will normally have two mediators but again, we’ll work as a team. So, we won’t work separately, we’ll work together to make sure that we have that unified approach to the work that we’re doing.

 

12:05

Carly James: Helen, what happens if one of the parties doesn’t wish to attend mediation? Is it possible for mediation to go ahead?

 

12:21

Helen Morgan: It’s important to understand that mediation is completely voluntary, nobody is forced to take part in mediation, but all parties do have to agree to undertake mediation for it to go ahead.

 

Now, when we say all parties, we do mean all parties, and that does include the mediator as well. So it may be on occasion that the mediator decides that a case isn’t suitable for mediation. So, this means that we can maintain client confidentiality as well. So when, for example, I go back to a client and say, this will not be moving forward to mediation unfortunately, it may not be that the other party has not said they don’t want to mediate, it may be that for some reason, the mediator has identified a reason why it would not be appropriate to mediate at this time.

 

It must be the right time for both parties. And both parties need to be willing to try and give it a go for successful mediation to take place. When both people are at this stage, then it’s more likely to succeed. So it might be that another date further down the road may be better.

 

13:28

Carly James: And I guess for some parties thinking about engaging mediation, they may be concerned about being disadvantaged. So, in fact, the fact that there is the potential to have two mediators working in tandem, or the opportunity for lawyers to attend, that could alleviate some of their concerns.

 

13:47

Helen Morgan: Yes, absolutely. We try to be as flexible as we can to accommodate client’s needs. And that’s the most important aspect. This is about the clients. This is about the client’s families. This is about the client’s issues and solutions.

 

This is not a one size fits all process.

 

14:05

New perspectives on family law. This is Confidante and Co – the podcast series from Confidante Law

 

14:12

Carly James: In a situation where there’s been domestic abuse in the relationship, or if one of the parties feels intimidated by the other party, how do you deal with that situation? Is mediation a suitable forum?

 

14:24

Claire Davies: That’s a very interesting and tricky question.

 

It’s important that mediation is always safe. And by that, I mean physically safe. And domestic violence is often a concern in the context of mediation, but also emotionally safe.

 

So, we must look at different kinds of abuse where that can be present within a family situation so that we can make sure we are being safe. When we do an intake session, we ask clients for quite a lot of background information about the relationship and about what difficult moments look like and what may have happened in the past.

 

There are some cases which sadly just are not suitable for mediation, we can’t make them safe. But having said that, it is important that clients can talk about some difficult stuff. And we are trained to create a level playing field to make sure that people don’t feel intimidated and can say what they need to say.

 

An important feature of mediation is feeling heard.

 

Sometimes we can have conversations and arguments without really hearing what the other person is trying to say. And mediation is about facilitating a proper conversation where people listen to each other.

 

And there are things that we can do to make sure that people do feel safe. So, we can try shuttle mediation, for example. Or we can encourage people to have lawyers present or we can co mediate, so have more than one mediator there. There are lots of things we can do to create that safe space for people to say what they need to say, and to be heard.

 

16:08

Carly James: And I think that’s really important information that you’ve just shared, Claire, and important for Family Lawyers to know that that’s the position as well, because I think sometimes Family Lawyers may advise their clients that it might not be suitable for them to go to mediation if there has been domestic abuse. So it’s great for Family Lawyers to know that it’s an absolute priority that safety is present, and that the mediators are looking at all sorts of ways to roll out that mediation in a way that’s going to suit the parties.

 

16:39

Claire Davies: Absolutely, because to be truly voluntary and mediation must, everybody has got to be able to take part in it in a meaningful and confident way. So if mediation can be made safe in a difficult scenario, that’s great. But there are cases where we simply can’t do it and every case is risk assessed when people come to see us.

 

17:02

Carly James: And what about if there is an issue involving the children or a child? Is it possible for the child to attend mediation? And if so, in what circumstances would that usually happen?

 

17:15

Claire Davies: The short answer is yes – children can be involved in mediation, but not necessarily in the way that people think. So, you can have what’s known as ‘child-inclusive mediation’ with a specially trained mediator. The child won’t be in the room with their parents trying to resolve an argument over where they spend their time, or who they live with. But the mediator will have a separate meeting with the child where the child will have the opportunity to express their feelings and to agree with the mediator, what can be fed back to their parents.

 

It’s important to understand that we don’t make the child the decision maker. When it comes to mediation, it is parents who make decisions for their children. But we’re all better informed in making decisions for our kids, when we understand and have a bit more insight into what’s important for them.

 

So, we might well be feeding back to parents that it’s important to this child that they get to school on time every day. Or it’s important to a different child that they have the right kit, or that another child needs to have its pet close by when it’s spending time with its parents.

 

So we don’t ask children to choose which parent they’re going to live with. That’s not the role of child inclusive mediation. But we do enable children to have a voice and to express their feelings in a way that might be useful to their parents. Crucially, however, most of the work is done with the parents. So before we will talk to a child in child inclusive mediation, we spend time with the parents to prepare them for it, and to make sure that it’s suitable for them. And we’ll also spend time with them afterwards to make sure that any information provided by the child is used in a constructive way.

 

Mediation, child-inclusive or otherwise, should never make things worse. The idea is that involving children should help parents to resolve disputes in a constructive and meaningful way. But without putting any pressure on the child.

 

Not every case is suitable for child inclusive mediation. There are cases where there are allegations or concerns that might mean it’s just not safe for the child or the child may be put under pressure. That’s not what this is about. But it is a means for parents to gain some more information about what’s important to their kids

 

Carly James:  Do children have to be a particular age to come to mediation?

 

Claire Davies: They must be old enough, which isn’t to say that there’s a firm cut-off point because all children are different. It perhaps particularly suits older children, a lot of child inclusive mediations work with teenagers, for example, but it can work very well with younger children if they feel able to be comfortable as part of that process. But we wouldn’t involve a baby, if I can put it that way, because it wouldn’t be fair on them. And it probably wouldn’t be constructive.

 

20:20

Carly James: What happens when an agreement is reached in mediation?

 

20:23

Claire Davies: In mediation a variety of things can happen. Sometimes the mediator will just note the agreement that’s been reached in effectively a mediation summary and clients will be used to getting those summaries every time they attend a session where an agreement has been reached.

 

In relation to finances, we tend to produce something called a memorandum of understanding, which is quite a detailed document, which sets out the core facts but also the agreement that the parties have reached in a way that hopefully is helpful to their lawyers to then formalise it into a legally binding document – a court order – with that we’ll prepare an open financial statement, which is a statement, which again, is hopefully helpful to the lawyers, it will set out exactly what the parties assets are, and where we have that information, what their income and expenditure looks like.

 

So that’s how things will be documented within mediation itself, those agreements are not binding, we advise people then to go to their lawyers to take some additional advice. And their lawyers, will turn that agreement into something that’s legally binding. Importantly, nothing that you discuss in mediation should find its way into court bundles, or into any form of litigation. The reason for that is that it’s really important that people are free to say what they need to say in mediation without the fear of it coming back to bite them at a later stage, which is why we ask clients when they come to sign a mediation agreement, and why we impress on them the importance of confidentiality.  That’s to safeguard them, and to ensure that mediation is a safe and constructive process, where they can say what they need to say.

 

22:11 

Carly James: And you make a really important point about seeking legal advice. And it’s key, the timing of that legal advice, because parties have been through the mediation process, and they sign the memorandum of understanding. And then they go and get legal advice that can sometimes be quite problematic if they’re hearing advice for the first time and they’re then not happy with the agreement they have signed, and in that situation that can cause the huge amount of resentment and anger and frustration for the other person.

 

So, it’s important for parties to understand the benefit of receiving that legal advice early on in the mediation process, or at least after the disclosure process, because then they can weave that legal advice into negotiations. And they will know them when they’re signing the agreement that they have covered everything they need to and they’re not hearing that legal advice after agreement has been reached.

 

23:09

Claire Davies: What we don’t want to do is to find new and interesting ways of generating conflict. And there’s nothing creates conflict better than a breakdown in something you think you’ve agreed.  And if they do have worries, we can cover those at an early stage. Absolutely get them out in the open, talk about them, resolve them, and the documenting of an agreement by a lawyer should really be a formality. A drawing together of what’s already been agreed in a format and using language that a court can reliably approve; it shouldn’t be a nasty surprise. And it certainly shouldn’t be a disaster.

 

23:53

Carly James: So how many sessions does it usually take to reach agreement about the finances?

 

23:59

Claire Davies: Gosh, it really varies. That’s partly because some people like to have quite short sessions. And some clients like to have longer ones, although we try to encourage people not to go on for too long, because it becomes counterproductive, I would say typically is perhaps five or six sessions. But I have had clients who’ve gone on mediating for far longer than that often in a very kind and focused way because they don’t want to put themselves under too much pressure. So, I don’t think it’s a ‘one size fits all’ scenario. It really does vary. But it’s often a great deal quicker, and a great deal cheaper, than fighting it out in court.

 

24:44

Carly James: Helen, that leads us on neatly to my next question, how much does mediation cost?

 

24:50

Helen Morgan: Well as a charity we offer means-testing for all of our clients. And that means most of our clients do pay reduced fees. And in fact, a third of our clients don’t pay anything at all.

 

Where fees are charged, they’re charged by the session. They’re not charged by the minute or the hour, or the unit, or any of these other charging terms that you hear in law firms and things like that. So, what you’ll get for the session charges that you are charged is the 60 to 90 minute mediation session. And all phone calls, emails, summaries, agreements, anything that you need, will come under that one charge that you get for each session that you come to. And in fact, the first meeting that you come to your first initial session to see if mediation is suitable for you and your circumstances, there’s no charge for anybody for that one at all.

 

So, it’s always worth coming along to us to have that discussion to find out if it’s suitable for you to come along to mediation.

 

25:51

Carly James: So, it really is a much more cost-effective process. And based on the average number of sessions, you can really canter through that process quite quickly and resolve the issues quickly.

 

26:03

Helen Morgan: Absolutely. It can be much, much quicker, much more cost effective than taking it through the court process first.

 

26:10

Carly James: I think lots of people have preconceived ideas around what mediation looks like and what the process involves. They’ve maybe heard from friends who’ve been through the process – and some of those myths may put people off going through mediation, so if we can, I would like to try and debunk as many of those myths as possible.

 

So Claire – mediators may be biased against me because my spouse has portrayed me in a bad light. What would you say about that myth?

 

26:46

Claire Davies: Oh, well, mediators are professional and trained to be impartial. So, it’s very important to us, actually, that we don’t take sides and that we never judge people. That’s not what we’re there to do. We’re there to try to help people to resolve the problems that they have. And to reach a good outcome.

 

If a client ever during a mediation has a concern that they think we’re not impartial, or that they’re feeling judged, we encourage them to raise that as an issue so that we can deal with it.

It is very common for clients to be worried about what their ex has said about them or what their ex is saying about them in the room. But having that level playing field is very important. And as we know, as Family Lawyers, Carly, what our clients say about each other in terms of their deficiencies is rarely, if ever, relevant to how they resolve their matrimonial financial or children-related disputes. So, we try to keep people on track, but reassure them that we’re not there to judge them.

 

27:52

Carly James: That’s really helpful.

 

Helen, ‘mediation isn’t appropriate as I need something legally binding.’ What would you say to that?

 

28:00

Helen Morgan: Simply that mediation can be undertaken as part of the legal process, and courts and lawyers often do refer couples to mediation, lawyers can refer when clients are stuck on issues or specific decisions that need to be made. And once agreement has been reached, this can then be taken back to the lawyers to draw up legally binding agreements.

 

28:19

You’re listening to Confidante and Co with Carly James.

 

28:23

Carly James: Claire, what would you say to somebody who felt that their legal rights wouldn’t be protected if they were to mediate?

 

28:30

Claire Davies:  Well, I think that’s about exploring what people’s concerns are. Because I think it’s important that people have confidence in mediation, before they start, and important to think about what rights it is they’re concerned about. We do encourage clients to have legal advice throughout the mediation process. We encourage them to think about the issues around confidentiality and the importance of it, we make sure that people understand that things that are talked about in mediation shouldn’t then be used in court documents, or in a way that can be used against them really to encourage them to have some confidence in the fact that is not about undermining their legal rights. Mediation is about finding solutions to problems that can then be turned into legally protected and binding agreements – it’s not about catching people out.

 

29:24

Carly James: I think, again, it’s important that people understand the legal process can be used in tandem with mediation, so if anyone does have any concerns about their legal rights, then they are at liberty to take legal advice at any point during that process or to stop that process.

 

29:39

Claire Davies: Absolutely. And they will be encouraged to take legal advice- it probably takes place in most sessions that people have, we will have a chat with them and to make sure they understand the importance of doing that.

 

29:50

Carly James: And Claire: if people think that they are just so far apart, that it’s going to be a waste of time and money to go through mediation what would you say to them?

 

29:59

Claire Davies: Oh, I would say that mediation is never a waste of time ever, because couples that come into mediation or family members that come into mediation have nothing to lose.

 

At the very least, they will get a better understanding of each other and about each other’s positions. It’s not uncommon for people coming into mediation to think that they are miles apart. And the process of mediation gradually brings people closer together, because they understand each other’s point of view, because we talk about the figures, because we sense check a lot of people’s ideas and thoughts. And because we start to get to the bottom of what is really important, and why it’s important, it’s about reminding people that they have the skills to solve these problems together. And what they need to do is to communicate and to understand better each other’s point of view, and priorities. And it doesn’t matter how far apart you are, you can become closer because of the mediation process.

 

31:01

Carly James: And you’re right. And unless parties are prepared, just to throw their case to the court, they’re going to have to communicate one way or another. And it’s about choosing the forum. So, either they do that with the help of their lawyers through the legal process or embarking on the mediation process and trying to narrow the gap, if not close it entirely.

 

31:20

Claire Davies: Absolutely. And it is not preferable for most people to leave the most important decisions in their life – about their children or about their money – to a judge they’ve never met before. It’s a massive risk. And one of the advantages of mediation is that it gives you control over your own future, the ability to generate proposals to discuss them to reach your own agreements, in a way that’s far more beneficial than ending up in a courtroom. Of course, courts are always there. And there are some people that can’t agree. And that’s fine. But even for those clients who do end up in court, hopefully they have benefited from the time that they’ve spent in mediation.

 

32:01

Carly James: Family Lawyers will always advise clients, that court really is the last resort. There are so many methods to try and resolve a case without going through the court process, which is incredibly stressful, and enormously expensive.

 

Helen, ‘mediation isn’t an option because court proceedings are underway’. Would you say that’s accurate?

 

32:22

Helen Morgan: Definitely not – court proceedings are often underway when people are coming to us for mediation, the courts often refer people to us for mediation, when they’ve appeared before the courts.  It’s always possible to postpone court dates as well, if need be, if you’re going through the mediation process. It’s definitely more cost-effective in many cases, than going to court repeatedly with your lawyers. And as Claire has said, it keeps control in your own hands, it can often be a quicker process than having a word long wait for court dates as well. So, whilst you may have started the court process, it’s always still worth thinking about coming to mediation and trying to attempt to resolve these things yourselves to keep control and to speed up and reduce the cost of the process.

 

33:05

Carly James: Claire – if parties have tried mediation before, but it didn’t work and they thought that it wouldn’t work on this occasion, what would you say to them?

 

33:13

Claire Davies: Oh, I’d say it’s always worth giving it a go in the sense that again, you have nothing to lose. Sometimes people try mediation when they’re not quite ready, people must be in the right sort of stage of the process, psychologically, to really engage with it. And circumstances change. Sometimes people need to be a little bit further down the road before they’re ready for it. But just because it’s failed before does not mean it’s going to fail this time.

 

33:38

Carly James: And what about for couples who are wealthy, they may consider that mediation is aimed at people who haven’t really got much money and mediation wouldn’t be suitable for them. What would you say to that, Claire?

 

33:51

Claire Davies:  Well, I would say that mediation is for everybody. We mediate with high net worth couples who may have a great deal of money. But at the end of the day, they still need to communicate better, they still need to try to reach answers in relation to their finances that make sense for them, and for their families and in particular for their children. The amount of money that you have does not necessarily mean that resolving your finances is more complicated than it would be for someone who doesn’t have much money. In fact, the reverse is often true. So, I would encourage people not to think in that way, and to understand that the service can benefit everybody, no matter what their financial situation or their role in life.

 

34:34

Carly James: In the next section, I would like to delve a little deeper into mediation focused on helping parties to divide their finances.

 

So do clients have to go through a financial disclosure process in mediation, Claire?

 

34:46

Claire Davies: Yes, they do. We ask clients when they first come to mediation to complete a financial pack. That’s if they’re discussing finances rather than children, and they’ll have to provide not just information but also the documentation to back that up.

 

It’s a really important part of our process, so that they can have confidence in the discussions that they’re having and in the agreements that they’ve reached.

 

It is also important for sense checking because there’s no point having discussions about your money, if you’re just plucking figures out of the air, because those agreements in practice won’t work.  It’s very important, just as when you’re going to lawyers, that you have that essential financial information behind you.  Having said that, our forms are a little simpler than the lawyers might use a little simpler in terms of process than the courts might use if people are engaged in litigation, but that central information must be there.

 

35:46

Carly James: I think that’s a real worry for some people that they’re going to go through the mediation process, and their spouse might not be honest, or they might not provide full information during that process. So, it’s great to know that that financial process is there, that it’s structured, that people have to have evidence of their financial circumstances.

 

And I suppose for anybody who’s really concerned about their spouse not providing full information, potentially, they could go through the process with the benefit of lawyers and go through the financial disclosure process that way, and then take that information to mediation. So, they’ve got the comfort that they’ve been through the process legally, but then they still can benefit from negotiating a settlement or discussing their finances in the mediation forum.

 

36:32

Claire Davies: Sure, we would always, as part of our process, look at the figures, even if lawyers have already done that. And that’s partly because the process of working through the figures together in mediation as an important part of starting to gather ideas, make proposals and hopefully achieve a settlement. So, working with numbers and making sure that there is confidence in them is very important to the process itself. And we encourage people to ask questions of each other. So, if clients have concerns about whether someone is telling porkies in terms of their expenditure, we encourage those questions to be asked and aired. And we reality check everything. If, for example, somebody is saying that they only spend £2.50 a week on food, we’re probably going to ask them to think about whether that’s accurate or not. Jersey being jersey, it’s unlikely. So hopefully, mediation provides a safe and respectful forum, to look in detail at financial information, and to make sure that everything adds up. And that’s all part of having that confidence in the process.

 

37:42

Carly James: Once you’ve gathered the information, and both of the parties are happy with the disclosure, how do you then help clients decide on the division? What’s the process that you go through? And do you encourage parties to get there themselves? Or do you make suggestions as to how parties might deal with their finances?

 

38:03

Claire Davies: It’s always a tricky one for a mediator, perhaps particularly one who’s a lawyer not to be too directive in the way that the mediation unfolds. All mediators’ training includes some understanding of legal concepts, even if we’re not lawyers. But the first thing that we do, once we’ve been through that financial disclosure is to look as a group at what the assets are, and at how money is being spent. And as I say, that’s really to start to help people talk about what’s important to them, and to start to think about what the options are. And that then encourages the parties to generate proposals quite often, they will have discussed that with their lawyer as well, then when we’ve got proposals out there, we can start to talk about them to get people’s views on them, and to identify where the sticking points are. And before you know it, people have started to move together in the same direction, almost without realising it. And quite often, they’ll start to realise the problems with their own proposals. And they’ll start to fix those problem areas without us having to have too much of an input. But it’s really useful for people to generate their own ideas and their own agreements because if they do that, those agreements stick, they don’t fall apart in five, ten or fifteen years later.

 

39:22

Carly James: It must be the most rewarding part of the role for a mediator to see parties coming together and coming up with ideas and reaching that agreement themselves.

 

39:32

Claire Davies: Absolutely. The most rewarding point really of a mediation is that point at which your clients remember that they can solve problems together just as they did every day as a couple. And they remember that they’ve got this, and they can do this in a way that’s going to benefit them, their children, and in a way that will be with them for the rest of their lives. They may be in a position where they will both be able to go to their child’s wedding or they will be able to resolve problems as they come up in future, because they’ve recovered the skills, they needed to do that.

 

Carly James:  And having that as a goal at the outset of the meditation process must really help clients to move in that direction, to know that that’s where they would like to be at the end of that process, able to communicate with one another, proud of themselves that they have been able to reach agreement together even though their relationship has broken down or they are dealing with a really difficult issue.

 

Claire Davies: Best mediations are the ones when they forget that we are in the room.

 

Carly James: Does that happen often?

 

Claire Davies:  Actually, it does. They start talking to each other, we fade into the wallpaper and they don’t need us anymore.

 

Carly James: I think that is really encouraging for anybody listening to this podcast, that you could find yourself in that situation, you could be 6 weeks / 12 weeks down the line, having reached an agreement over something you didn’t think was possible.

 

Claire Davies:  And they will often come along after a few sessions saying “well we had a chat between ourselves and we have talked about this, and we have talked about that” and you can start to see real change and progress in the way people communicate, to a point where, they have taken control again of their own future and their own destiny and that can only be to their benefit.  And far better than handing those decisions to a judge.

 

Carly James:  It has been enormously insightful and even for me as a family lawyer, I have learnt loads during this podcast.

 

It has been an absolute pleasure having you both on the podcast.  Thank you very much for joining me and I hope that the listeners will have a much better understanding of the excellent service you provide.

 

Claire Davies:  Thank you Carly.

 

 

To listen to more from the Confidante and Co series of podcasts visit confidante.law 

 

 

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