Getting at the Truth
Family mediators help clients achieve full and frank financial disclosure when mediating financial settlements and it is the client’s responsibility to disclose fully and honestly. Mediators are not obliged to examine the documents forensically; the agreement to mediate says so. Mostly this is not a problem, as the couple knows what their assets are. Sometimes issues arise as to the value of a business, shares in private unlisted companies, share options – a plethora of complex issues on which even family lawyers will bring in experts. Well, family mediators can bring in experts as well. If they either still are or were family lawyers, then they should know their way around all this comfortably. However, if someone is lying or failing to disclose all the assets, then mediation will have to stop until disclosure has been compelled, probably via court proceedings when the judge can order disclosure and then mediation may be re-commenced. If necessary some cases may go to trial in the hope that cross examination at trial will expose the truth. If a case settles with assets remaining hidden, then the settlement can be overturned.
Illusions, Misconceptions and Wishful Thinking – Challenging and Reality Testing
The first stage of any family financial mediation is to identify then value the assets. Only then can options for a deal be evaluated in the full financial context. Then the couple’s respective beliefs and feelings about who should have what overlay their approach to who should have what. They may believe one should have less because something or other was ‘their fault’ or that they should have more because the other wasted money drinking or gambling or because they must look after the children. People’s very understandable deeply held beliefs and feelings may or may not have any influence over the eventual outcome, however strongly felt. To move two implacable opponents from irreconcilable poles to a deal will take some effort. Yet it is what the mediator is tasked to do.
Necessarily therefore, some of a mediator’s main tools are extremely uncomfortable – even occasionally painful. Challenging and reality testing beliefs, arguments and options for settlement can fall into the ‘Ouch’ category, as does delivering unwelcome but essential legal information that a client may not want to hear. Some examples may help:
Mediator: ‘Ok Mrs X – I’m hearing you saying you will take over the mortgage if you have the house – but how can you release Mr X from the mortgage – the mortgage is over £300,000 and you are a part-time carer, surely it cannot be done? Where will Mr X live?’
Client A: ‘We’ve agreed whose having the pensions and whose having the children – she’s having the children and I’m having the pensions . . ‘
Mediator: ‘ . . but those issues are dealt with separately and the pension sharing issue is only looked at in the context of the overall assets, the children aren’t relevant to that.’
Client B ‘I know we are married – but I want a settlement based on co-habitation law, not divorce law.’
Mediator: ‘Well you’re either married or not and if you are married those are the laws that apply . . .‘
OK – so here’s the nub of it – the more effective, knowledgeable and honest your mediator is, the more uncomfortable your mediation may be. An effective mediator knows it is her task ‘to boldly go’ to the ravines you have been papering over – with a view to sorting them out properly. It’s no help if you let people pursue hopeless, impractical and unfair options for settlement, as they won’t work and it will fall apart after you have spent money on the mediation, which helps no one. So yes, it is the mediator’s job to help you reality-check your proposed settlement, to make sure it will work. Sometimes that busts illusions, but that was always going to happen and the sooner the better for all concerned, even if there is the odd ‘Ouch!’
Call us on 01908 231132 or Email: info@focus-mediation.co.uk for further information or to book a Mediation Information & Assessment Meeting (MIAM) (10 Locations – Milton Keynes, Bedford, Hemel Hempstead, London, Northampton, Oxford, Potters Bar, St Albans, Harrow and Watford). Read more about family mediation (including our client testimonials) at www.focus-mediation.co.uk
