In this blog we’re looking at the different processes that exist to help couples who are separating to resolve all the issues that crop up.  Why?  Well because it’s important you understand all the paths you can go down before you decide which one is right for you.  If you don’t want to mediate then it can be helpful to look at which process might work best for you instead.  It’s also important to understand which processes put you both in charge of what happens next, and which processes mean somebody else makes decisions about that for you.

Mediation

Mediation is a process that brings you both together to talk about what happens next following your separation.  A mediator takes you through the process and explains things so you understand where you are and what the next steps are.  The mediator can also help to keep your discussions structured and on the same point before moving forward.  They can also help suggest options that you might not have thought about.   Mediation is usually the quickest and most cost efficient way of resolving issues.  You are completely in control of what happens next for you, and your children.  If you have worries about mediation then it’s important to note that mediation is a really flexible process and it is possible to have any of the following safeguards put in place:

• You and your ex-partner arriving and leaving the meeting separately so there is no chance of you meeting in the car park, or being asked about things you said.
• You can mediate online via a video conferencing facility like Zoom so you are in separate places during the meeting
• You can mediate in separate rooms so you never come face to face.  This can be done online, or offline.  Shuttle mediation can be less effective as you’re not hearing what each other say but it can also be the difference between being able to mediate and not being able to mediate for some people.
• You don’t need to make decisions in the mediation room.  It’s a place to talk about options so you can go away and consider them, and get any legal or financial advice that you need.
• Before you write off mediation as an option ensure you talk to the mediator about the things that worry you and see how they might address the issues so you can feel reassured.  An initial meeting with a mediator takes place with you on your own and it doesn’t commit you to undertaking joint meetings with your ex partner.  It will enable you to understand the process, to find out what safeguards can be put in place and allow you to meet the mediator and to discuss the options open to you.

Collaborative practice

This process is a bit like mediation in the sense that you get together and talk about things round a table.  You are in control of what happens next for you, and your children.  But instead of having one mediator you each have a specially trained lawyer who supports you in the process and again helps to inform and structure your discussions.  It’s a very open process with lawyers giving open and not positional legal advice.  Everybody involved, including the lawyers, agrees that a resolution will be found within that process and you won’t need to go to court.

Negotiation

This can mean different things but essentially it means you both coming together to discuss what happens next to help you find a resolution to the various issues you each see.  It puts you both in control of what happens next.  It can involve any of the following (or a combination of different options):

• You both talking together either with just the two of you, or with a trusted friend or family member (or someone more arms length such as a priest or Iman) to talk about the issues and what could happen next.
• Lawyers negotiating on your behalf – but with input from you as lawyers work on your instructions, they can’t just find a solution without talking to you.
• It can also include a round table meeting with your lawyers present to negate the need to send letters.  Again this can speed things up because you can talk about things “live” rather than waiting for letters to pass between you.  Any miscommunications can also be clarified more quickly than by letter meaning they are less likely to escalate into conflict.

The above processes leave you in control of the outcome.  The processes set out below will mean someone else decides some or all of your issues for you.  This can be a tempting option when finding a solution you can both agree on feels like an uphill battle.  But remember any person deciding matters will not know you and will only have had access to certain pieces of information about you.  Neither of you may like the decision they make and you have then lost the ability to make your own compromises.

Court

Most people have some level of understanding about the court process.  It involves the Judge deciding what happens next for you.  Sometimes people are not aware of the fact that there are usually 2 or 3 court hearings spread over a period of potentially a year or more before the Judge makes a decision.  It can be expensive to have a final hearing if you are instructing lawyers.  Equally having a final hearing (where a Judge makes a decision) can be daunting if you don’t have a lawyer as you usually have to ask each other questions about the information you’ve each provided (called cross-examination).  Going to court can be a stressful process as you wait for hearing dates.  Hearings can also sometimes be cancelled at short notice if there is a lack of Judges or problems at the court.  You all use the same process regardless of whether you have only one issue or many issues, and regardless of whether you have many or only a few financial assets.

Arbitration

This is a bit like private court proceedings as you appoint a qualified arbitrator (a solicitor or barrister with experience in family law who has undertaken the arbitration qualification course).   You can tailor this process more to your individual situation so if you only have a house, a pension and a salary each then you may find completing the lengthy form E unnecessary.  You can also ask the arbitrator to make a decision within a set time frame to save you waiting for lengthy court hearings.   This can mean you get an outcome more quickly but you still lose the ability to decide things for yourself.  You will also have to pay the arbitrator as well as your lawyer.

The question for all separating couples is which process will work best for you?  This will depend on various factors.  A number of processes exist because there is no “one size fits all” approach to separation.  Different situations require different processes.  It may also be possible to use a hybrid process where you use two different processes working together to help you.   Sometimes when people say they don’t want to attend mediation, what they really mean is that they want someone else to resolve the issues for them because it feels too hard.  But issues relating to separation cannot be resolved without input from both parties (save for as a last resort by a Judge making a final decision that will bind both parties) because you need to provide information about your situation to establish what options might be right for you.  For example, a couple with equity in their home of £600,000 may be able to sell this and buy two properties – one for each of them.  But a couple with equity of only £100,000 may not have this option open to them.  With regard to issues concerning your children you are best placed, as parents, to know what will work best for your children, and so using a process that enables you to come together as parents and talk about what arrangements you will put in place is likely to give the best possible outcome for your children.

In next week’s blog we’ll be pulling the threads together to help you work through the question of whether you have to go mediation and identify concerns relevant to you.  In the meantime, if you’d like support and guidance coming into your inbox every fortnight then why not sign up to our free mailing list?  You can also download our free mini guide to separation to help you understand your next steps.

You can watch a video I put together about this and/or read the blog below.

The first piece of important information is that parents are permitted to leave their homes to transport their child or children to the other parent’s house.  The government made something of a dog’s dinner of clarifying this situation so it’s important to note that this point may not be clear.  The only exception to this would be if there were symptoms of COVID-19 (i.e a high temperature or a dry cough) in one parent’s house when the child was there.  In which case the child would be part of that household self-isolating for 14 days and would not then be able to go to the other parent’s house.  If the child developed symptoms then they would need to self-isolate for 7 days, even if this took them over the original 14 days.

So potentially a parent may not see their child for 21 days if the child ended up self-isolating with the other parent.  This is tough.  Especially so for parents who share care of their children through the week so they never go more than a few days without seeing the child.

There are also difficult decisions to be made for those families whose households include a member who is in the vulnerable category.  This could be a parent with asthma or a lung condition (or other ongoing health condition) or a grandparent living in the same household who is over 70.  In these circumstances there may be difficult decisions to make about whether you continue to co-parent as usual during this difficult time.  Having a child moving between households could potentially pose an increased risk to a vulnerable person that needs to be considered.  There simply aren’t right or wrong answers in this situation and it’s important that you give thought to what is right for your family.  You may wish to give some thought to:

• If the vulnerable member of your household is an older or vulnerable relative is there another family member they can stay with at this time to prevent the increased risk being past to them of the child going between houses; or is it possible for them to be isolated within your household i.e having their own room and bathroom away from others?
• Is there an increased risk posed by the other parent’s household?  Are they a key worker continuing to go out to work and mix with others who are potentially carrying the virus?  Or are they staying at home and not going out and so of a lower risk?
• How might your child feel if they were not able to see the other parent for some time?  How do they cope with changes to their routine? For children diagnosed with ASD even small changed in their routines can have a big impact.
• Can you mitigate the difficulties for the child with the use of regular video chats by Facetime or what’s app or other such technology?  These technologies are also useful if a child ends up self-isolating with one parent and unable to see the other.  You can be really creative with these.  I am aware of clients using these for chats and discussions, home schooling and reading stories for quite long chunks of time.
• Can you re-jig your current routine to provide for time with each parent in a way that poses less of a risk to other members of each household?  This might include longer periods of time with each parent.
• Many mediators are carrying on helping those going through (or who have been through) a separation and so if you’re finding it hard to work out these challenging issues then consider using family mediation as a safe space to have difficult discussions.  Meetings would need to take place online but can be a useful way of exploring and understanding all the options and finding a mutually palatable way forward.

It’s important to remember that your situation is your situation and whilst it may cause you both some upset and anxiety the object is to find a way forward everyone can live with.  This situation won’t be forever and a solution is a temporary fix to a unique set of circumstances.  Don’t worry about what others are doing but focus on what will work for you.  Be creative and innovative in finding a solution to your particular challenges.  As long as it works for you no one will interfere with it.  Please get in touch if you feel you could do with some professional guidance and support.

A quick Google search throws up headlines about divorce costing upwards of £70,000, and various other reports about huge legal fees. Here at LKW Family Mediation we would urge everyone to give some thought to “how much do I want to spend on my legal fees?”. There really is no rule that says you have to spend a certain amount or that any amount is a ‘given’. If you both want to spend as little as possible on legal fees then hatch a plan to do just that. It means there will be more money left for both of you.

To offer a comparison between mediation and these epic court battles we keep reading about, mediation with us involves each party attending an initial meeting on their own, followed by an average of 3 to 5 joint 1.5 hour meetings. If you had 5 joint meetings the cost would be £2,000 in total for both of you (not each of you). You can even make it a bit cheaper by choosing one of our fixed price packages. Other mediators costs may be slightly less or slightly more, but will broadly be in line with that figure.

As part of the mediation process you may have a couple of meetings with a lawyer to get some advice. You may also instruct a lawyer to finalise the resolution you come up with together. For having three hours worth of legal advice and having a lawyer prepare a consent order you will pay something in the region of £1,700 to £2,000 each. You can choose to have more or less legal advice depending on what feels right for you. If you’re confident in what you’re discussing you may feel any legal advice is unnecessary.

We would also suggest that there are other costs of divorce beyond the financial. Parental separation is not in itself a cause of difficulties in children. The conflict between their parents is what causes emotional, behavioural and even physical health problems in children. So the more you can keep the temperature of your separation down the better off your children will be, and the better off you will each be financially. That sounds like a better scenario doesn’t it?

It is at this point that many people will be thinking words to the effect of “well I’d like to do that and keep the temperature down but the other party is so unreasonable”. There is an idea that in the same way it takes two to tango, it takes two to decide this divorce will not be a battle and there is an element of truth in that. However, we would suggest that very few people make a decision to be as difficult as possible when going through a divorce. Often a person perceived as being difficult is shouting something that is not being heard. They may be struggling to come to terms with the breakdown of the marriage, they may be deeply and hugely fearful for their future. Mediation can be hugely beneficial in helping each party hear what is going on for the other party. This alone can help to iron out difficulties in finding a way forward.

It may also be that both parties need some further assistance to move forward. Some counselling or therapy can be helpful. In other cases a family consultant can help a family stuck in conflict to move forward and find a different path. People can often be concerned about spending money on other experts and see a mounting bill of costs that will affect what they’re able to do in the future. We suggest looking at it a different way. If a huge court battle can cost you tens of thousands of pounds. Then spending a few hundred pounds on not having that battle represents a very big saving. That saving may also not just be a financial one but one that amounts to everybody involved’s well being.

For other people who, for example, own one property, have 2 bank accounts, a job and a pension, completing such a large document can be unnecessary. In mediation they may therefore choose to just provide documents evidencing the assets that they have. The level of detail may also be tailored to how knowledgeable clients are about their own financial situation. We see clients who have spent their entire relationship pooling their money in a joint account and making joint decisions about family finances. They may therefore both feel that it is unnecessary for them to formally get together bank statements as they both can access all accounts. Some information will of course be necessary so that the mediator understands their financial position.

For other couples one person may have managed the money and the other person may have had little to do with the family finances. There can also be a breakdown in trust following a relationship ending and for that couple it may be important that the financial information that is provided is really comprehensive, to enable the person who has not dealt with the money to really understand the family finances. If they do not feel confident with this information then they may wish to go through it with their lawyer, or financial professional, in more detail. The mediator must always be sure to work through financial information at a pace that is suitable for both parties. Many people are not knowledgeable or savvy about financial matters and a good mediator should never assume that both people in the room understand money matters. No one should ever be made to feel inferior about their understanding in mediation either. Mediation is about empowering people and equipping them for the next stage of their life and giving them the tools to feel confident about this.

This flexibility to deal with matters in a way that works for both parties should never be confused with using mediation as a forum for avoiding providing full financial information. Both parties need to have sufficient information to enable them to make informed decisions about what happens next. They need to be able to make decisions without fear of regretting them in the future. No one can do that with only part of the financial information they need. Can you confidently say what the picture is with only half the jigsaw puzzle pieces in front of you?

If you are unsure about what financial information should be provided then ask the mediator for more information. If you’re still not sure then you can ask your lawyer (if you have one) for advice on the issue. It’s important to note that just because you provide information about an asset it doesn’t mean that asset will automatically be divided between the two of you. It’s about ensuring everyone has all the information they need to make considered choices. This also offers each of you protection because in certain circumstances it can be possible to re-open agreed financial orders because one party has not provided full and frank information. Properly providing full financial information throughout the process gives you both the confidence that decisions you’re making are the right ones and that the resolution you shape will be a long lasting one that properly serves you both, and any children you may have.

This fear can be compounded by not knowing what to expect.  Some people still equate mediation with some form of relationship therapy.  You can wonder how the mediator will get you to talk about all that needs to be resolved.

Sometimes you may want to say hurtful things because you feel very hurt yourself.  Often some things are easier said by solicitors because you can hide behind the letters that are sent as being from someone else and not you – even though they’re written saying what you want to say.

Talking things through face to face can seem like a mountain to climb.  How will you have the courage to say what you need to say?  You know that you need to safeguard yours and your children’s financial future but all discussions end in arguments?  How can you talk about financial matters when you have never handled anything to do with money? There may be 1001 questions racing through your head – often in the middle of the night.

The good news is that the mediator will be aware of how difficult you may find it.  Here at LKW Family Mediation we meet with all clients separately to begin with.  This enables us to check that mediation is suitable for you, and it also enables us to find out what your fears are and what has led you to this point.  The mediator will use this information to inform how they deal with the mediation process.  For example, if one person has never dealt with any of the money matters then the mediator will ensure that they understand each topic and the issues before moving on.  The mediator will also suggest that each party obtains the required legal and financial advice.  The mediator will, in short, ensure that the process is fair.

The mediator cannot find a resolution for you.  That’s your job.  But the mediator can provide lots of information and suggest options that you may not have thought about.  The mediator will also help you work through different options to find out which one will work best for you in practice.  In addition to this they will check how you are each feeling and ensure that breaks are taken if necessary.  The mediator may also check what support network you each feel you have and whether you have had, or may need, counselling.  This can help to support the process.  It’s important that you have a safe place to talk about what’s happening to you.  Counsellors can often be brought into the mediation process to help people deal with unresolved conflict.  This can then help the process to move forward.

By talking to each other directly you can move your discussions forward much faster than waiting for solicitors to write letters.  They can also be more honest as you speak for yourself.  It can also help parties to take responsibility for their dispute, and for finding their own resolution.  Often letters written about the “petitioner” and the “respondent” do not bring home the fact that this is a discussion about what happens next in your lives.  It can seem unreal, as if you are discussing another family.

If at any point you feel uncomfortable or particularly anxious, then talk to the mediator.  Mediation is a hugely flexible process, and the mediator may well be able to adjust it to help deal with a particular anxiety or fear.  Whilst it may seem overwhelmingly scary at first this tends to subside a little as you attend more sessions.  At the end the feeling that you have worked together to achieve a resolution that will benefit everyone makes working through that initial fear worthwhile.  Mediation makes ongoing dialogue about your children, and any financial matters, much more likely to be possible in the future.

In many respects mediation is a brave and bold option.  It may feel much safer to get lawyers to write the letters.  After all then it is possible to make accusations and say the more hurtful things, and then hide behind the fact that it was the lawyer’s pen.   Or perhaps going to court may seem a good option?  After all you’re never going to be able to find a compromise so you may as well save the months of waiting before making the application.  If a judge makes the decision then you don’t have to.  The judge can decide it all.  Then if the outcome is not good it is the judge’s fault, or the lawyer’s fault, or even the system’s fault.

Talking is hard because it means facing the one who has hurt you, who has upset the status quo.  It means you might have to face the conclusions that occupy your mind during the night when everyone else is asleep.  It means you might have to work more, shop in less nice places and make some hard decisions.  You might be faced with some realities that you don’t much like  – especially that really awful one about selling yours and your children’s home and moving somewhere else.

You may also find that the things that keep you awake at night, are keeping your husband or wife awake too.  You may find that they would like to find a solution that avoids those sacrifices if possible too.  When talking about what is best for your children you both know that Sam should continue with gymnastics and that Eddie will find the changes particularly hard.  You know your children best and so, hard as it is, maybe you are best placed to make decisions about what happens next in their lives, and yours.  The judge will never meet your children and will decide what happens for you based on figures on a balance sheet.  Surely you are better placed to make that call, with your knowledge of how your family works best, and what is really important?

The first session started horribly.  You were late because you wanted to spend as little time there as possible.  You could tell they were annoyed because they got there on time.  Well they would, wouldn’t they?  They get everywhere on time.  The session wasn’t quite as painful as you thought but your heart groaned at the thought of trying to find all those documents.  If only you’d got round to filing them like you said you would.  There just never seemed to be the time.   How long will it take to gather them together?  Ummmmmmm.  You hesitated.  You had no idea.  It felt like a mountain to climb.

But the mediator was kind and seemed to understand.  You got the stuff together (eventually) and going through the documents together helped them make much more sense than you thought it would.  Putting the key figures on the flip chart really helped, and then you got sent a summary afterwards.

There were moments when you didn’t feel you made much progress.  Sometimes you’d be talking about something and you thought you were agreeing.  But then something else came up and you realised that you weren’t agreeing at all.  There didn’t seem to be enough money either and that was a worry.

But then the mediator suggested something.  When you worked that through on the flip chart things started to look better.  You left that session with a slight spring in your step.  You even spoke to each other by your cars on the way out.  You arranged to go and watch a gymnastics competition together.  That felt good.  It felt like there might possibly be a future after all this, and one that was OK.  Not brilliant, but not truly awful either.

There were a few more ups and downs, but in the end you got there.  It wasn’t a perfect solution but it was one that would hopefully work.  You could do a few more hours, and there was never anything on Sky anyway.  It felt good to finally have it sorted.  You could get on with what happened next.  You still felt sad but you felt that this was fading.  It had cost less to sort it out than you thought and you were glad a judge hadn’t decided.  You had started talking a little again and you could see that you were both a bit more relaxed and so the kids had relaxed a bit more too.

This is a hypothetical story drawing on reports from clients as to how they felt throughout the mediation process.  It does not reflect any client’s actual story.