Many divorcing spouses believe they need a Judge to divide their marital assets, or they risk losing out. They know litigation is hugely expensive and adversarial, but they believe that ultimately it’s the only viable option for them. A stay at home mum/dad may feel they need to fight to keep the house. A mum/dad working full time may believe they will lose all / the majority of the equity in their home and half their future salary, if they don’t battle in court. Full time working parents may also worry they will be penalised for working so hard – what if they aren’t portrayed as involved and loving parents? There’s no doubt that each of these scenarios is frightening. ‘Arm yourself with the best solicitor you can afford and fight for what’s yours, is often the collective advice from friends and colleagues.
Will litigation really secure the best outcome?
As a former family solicitor and now a full time family mediator, I believe litigation is rarely the best option for a family. The reality is they will each spend tens of thousands of pounds protecting ‘what’s theirs. The process is lengthy and adversarial. Parental communication will be tested to the absolute limit – never good for children. Mediation saves many thousands of pounds in litigation fees. ‘But we don’t get on – he/she hates me and wants to take me to the cleaners!’ Mediation is voluntary and so it won’t be suitable in every case. However, there’s a misconception that couples have to get along for mediation to work. Not so. Quite often clients haven’t spoken for many months or their communication is extremely strained and difficult. It doesn’t mean mediation isn’t suitable. There’s no secret or magic to mediation. It’s for couples who understand that the most efficient way to resolve finances and child arrangements is to resolve the issues together – but they can’t. Mediation is a process that enables conflicted couples to avoid court and maintain control of their own future. At what other point in our life would we relinquish control of decision making about our future? Happily married but can’t agree on the best school for your child – would you ask an outside agency to decide for you? Thought not. Divorce shouldn’t prevent self determination.
How does it work?
Couples who need a financial settlement come to mediation and the mediator ensures they provide full and frank financial disclosure. If one party isn’t as familiar with the finances, then time is spent ensuring they are fully informed and clear about what the finances consist of. Our lawyer mediators are used to dealing with financial disclosure and checking every stone has been turned. Once full disclosure has been completed, we strongly recommend each client sees a solicitor for ‘goal post advice’. Goalpost advice means your solicitor gives you a range of possible settlements, “this is the lowest, this is the medium and this is the best you can hope for”. It’s very important to ask your solicitor what they would advise your ex if they were their client. It’s highly unlikely they’d tell them they must give up all equity, savings, pension and half their income. So asking this question ensures the advice they give you is realistic and meets everyone’s needs. The starting point is 50/50 and the court has a duty to try and ensure that each parties’ needs are met, as far as reasonably possible given the resources available. That’s actually why litigation often disappoints – as the costs are so high, someone needs to win. The court however isn’t looking for winners.
Reaching agreement.
When clients return to mediation after receiving ‘goalpost advice’, we explore their respective capital and income needs and consider options. Communication slowly improves over the sessions and clients work together as problem solvers and find solutions they can both live with. There are more assets available as they haven’t been reduced by expensive litigation costs. Their solicitor will then make the proposals binding.
Find out more about mediation at a Mediation Information and Assessment Meeting (MIAMs) with one of our experienced lawyer mediators. Clients can attend together or separately. It’s full of useful information and a great starting point.
Author: Sara Stoner, Family Mediator, Broxbourne & Potters Bar
Call us on 01908 231132 or Email: info@focus-mediation.co.uk for further information or to book a Mediation Information & Assessment Meeting (MIAM) (11 Locations: Milton Keynes, Bedford, Broxbourne, Hemel Hempstead, London, Northampton, Oxford, Potters Bar, St Albans, Harrow and Watford).
Read more about family mediation at: www.focus-mediation.co.uk
