Mediation is a process to assist couples in reaching their own decisions about the best way forward. Mediators are impartial third parties who listen to find out what is important to each person and help couples reach a joint decision about the best way forward and find a practical solution.
Each of you must agree to enter into mediation, and you will first have an initial individual assessment with a mediator to assess whether your case is suitable for mediation. You may need between 3-5 sessions, and you can each seek legal advice at any point during the process. Any agreement reached at mediation is not legally binding until formal steps have been taken afterwards, and you should take independent legal advice about the formalities.
What is financial mediation?
Financial mediation specifically assists couples in making decisions about the financial aspects of their separation, for example, where each party will live, how they will divide their assets, and in some cases, about how much financial support one should give the other for themselves and any children of the family. The mediation will consider what financial resources are available to the family, and in the mediation sessions, you can explore how these resources should be divided.
What is the financial mediation process?
You will probably have several sessions together with the mediator – each session may last up to two hours, and you may need between 3 to 5 sessions to reach a full financial agreement. You will agree on an agenda for each session before or at the start of each session, and at the end of each meeting, you may agree on the next steps, discuss when the next meeting will be, any action/follow-up points, and an agenda for the next meeting. The mediator will usually provide a written summary of each session. Mediation can take place remotely or in person, and you can agree to all be in the same room or in separate rooms (which can be virtual separate rooms). Separate room mediation is known as shuttle mediation, where the mediator shuttles between you.
Before any joint session, you and your ex-partner will each have an individual session with the mediator, without the other person present. The mediator will use this session to explain the mediation process to you and assess whether your case is suitable for mediation (it is unlikely to be suitable if there has been domestic abuse). They will discuss practical arrangements for the mediation, such as whether you are happy to be in the same room or want separate rooms. If your case is not suitable for mediation, or the other party will not participate, then you will receive a “sign-off” that can be used to demonstrate to the court that mediation has been considered. If you intend to issue court proceedings, then this “sign off” enables you to do so within four months of signature.
After the initial consultation, the first stage of the joint mediation process will be financial disclosure. You will both agree on what level of financial disclosure you require to enter into negotiations. Some couples will need full financial disclosure, akin to what might be disclosed in court proceedings. Other couples may agree that they are fully aware of each other’s financial position or only require certain financial disclosure, for example, you can agree you are both happy not to exchange 12-month statements for all bank accounts but instead to just see a snapshot of current balances. If you do not have full financial disclosure, you should take legal advice as to the implications of reaching a settlement. You will usually be asked to bring documents to the first joint session if you are providing full financial disclosure.
Once both parties have exchanged financial disclosure, the mediator will prepare an Open Financial Statement. This is a summary of the financial disclosure and it is an “open document” in that you can both rely on it in the future. You may agree that you wish to see documents the other has provided in mediation and a “disclosure pack” can be exchanged. The mediator will consider if you are both happy with how the assets have been valued. For example, if you disagree on the value of the family home, should you agree on a joint valuation or for example, take an average of valuations already obtained?
Financial negotiations in mediation
Once the open Financial Statement has been prepared, sessions will focus on trying to agree on an outcome. There will be many different aspects of the agreement to discuss. For example, where both of you will live and what happens to the family home and any other property owned by either of you? How will other assets be divided, such as savings or investments? If there are debts, or for example, car finance, who will be responsible for these? What are the child maintenance obligations (usually calculated by the Child Maintenance Service, but not applicable in all cases) Should there be any other financial support from one of you to the other, such as spousal maintenance? How will you divide pension provision?
If you are unmarried, then financial discussions may take a different tone, as you may have both been legally advised that your claims are different if unmarried as opposed to married. It is important to receive legal advice alongside mediation so you can understand what your possible claims may be, and in between negotiation sessions, consider discussing with your lawyer what is being proposed, to assist you in the next session.
Hybrid mediation is also a helpful possibility, where each party’s lawyer attends the mediation session. They listen to the mediation, and then private discussion for legal advice can take place, to assist both parties in reaching a swift agreement and to avoid having to wait until the next session for each of you to obtain legal advice.
Closure and follow up
Following the mediation, if agreement is reached, then the mediator will draw up a Memorandum of Understanding. This is not legally binding, and both parties must seek legal advice to make it legally binding. It also cannot be disclosed to a court as it is “without prejudice”. However, hopefully, both parties, after spending so much time and effort committing to reaching agreement in mediation, will then be able to cooperate with the assistance of legal advice to make the agreement legally binding.
How much can financial mediation cost?
Your mediator will inform you of their hourly rate, which will be shared between the parties unless you have agreed that one person will be solely responsible for paying for the mediation. As above, the cost may be 3-5 sessions up to two hours per time. In addition, you may have the cost of legal advice and the cost of making any agreement reached at mediation legally binding, and your lawyer can give you an estimate for this. You may find that the mediator charges a similar hourly rate to your lawyer, but the cost of the mediation session is shared. Legal aid for mediation is also available for those on a low income.
Generally speaking, if you can reach an agreement at mediation this will be cheaper than having to negotiate an agreement through lawyers or going to court to resolve your differences in litigation.
How does financial mediation differ from litigation?
Financial mediation offers a resolution outside litigation, however you must both reach an agreement voluntarily. Unlike litigation, if you cannot reach an agreement, no decision can be imposed upon you. However, even if mediation is not ultimately successful, it can often be helpful nonetheless to narrow the issues in dispute, and to understand what the other’s expectations are.
At Rayden solicitors, we have a number of mediators who are also experienced family law solicitors. Our family law solicitors can advise alongside mediation, and we can refer you to a mediator if you wish to come to us for family law advice. Alternatively, we can act as your mediator, if your ex-partner agrees. Please note that your mediator and your family law advisor cannot be the same person, or from the same firm, as you will need legal advice that is independent from your mediator.