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Back to Basics (and the dangers of overcomplication)

I find myself involved in a number of final hearings at the end of this year and am, yet again, struck by how often lawyers allow themselves to be distracted from the simple, basic things. Perhaps we get engrossed in the more abstract complicated issues and find the more mundane ones just a bit tedious. I know I do

The best example I can give is that of “housing need”. Here we generally say in a breezy and offhand way “of course we will need to produce housing particulars for both parties in preparation for the hearing” and leave it at that – when some much more detailed input is really required. It is easily forgotten that many District Judges tend to be more local than most counsel, and have a decent level of knowledge of the more and less desirable areas to live. It takes real preparation and effort to persuade such a Judge that your client “needs” a better & more expensive house than the ones proposed by his or (more often) her ex-spouse. On the other hand some full-time Judges, and most Deputies, don’t have the foggiest idea about the local area and need to have it explained to them in very simple terms

Counsel of perfection – and I have never met that individual – would suggest a systematic approach along these lines. First, decide on your “criteria” ie size of house, facilities required, factors bearing on its location and so on. Second find plenty of (full) property particulars, consider – lawyer and client each contributing to the debate – which are suitable and Schedule them. Then plot between say 6 and 10 plot of the properties on a map using coloured stickers, ideally also marking the location of the former matrimonial home, the school(s) attended by the child(ren) and your client’s place of work. Finally, package the end-product up for service on the other side and use at Court. If and when there are competing particulars it is possible to mark them on the map too and clarify why they don’t meet the criteria eg very small bedrooms, no garden for the family dog, near a busy road, too far from school etc etc

The most crucial point, though, is for your client to have visited the properties proposed by each side and prepared a dossier of comments. As a minimum he or she should have been to look at the houses from the outside and assessed the local area. Ideally he or she will have viewed some of the properties too

Where roughly the above procedure is followed it is crystal clear why the parties disagree about housing need, and as a rule it is down to location, location and location. I have cross-examined ex-husbands and watched them squirm as they have to tell a Judge that yes they do want their children to live in an area of high crime and unemployment where property is the cheapest in the town, rather than in a more expensive and “desirable” area. Sometimes the argument turns on small points, like the size of the 3rd bedroom in a new house (which will be tiny). I once asked a man in his evidence to predict how tall his son would be at the age of 14 and he said proudly that he would be at least 6 feet tall, and a rugby player like his father. I then asked him if the boy was academic, and of course he was a clever lad too. After that it was almost embarrassing to ask whether a very small box room would be a suitable study-bedroom for such a teenager …… and the husband’s case on housing need collapsed. It came down to bad preparation in my view

Cases very often turn on housing need and the side which has prepared better and has the more realistic property particulars is likely to win the day at FDR or final hearing. The lesson is that time and effort spent on this basic issue is more worthwhile than efforts to deal cleverly with more abstruse and abstract points

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Socratic wisdom (what do we really know?)

I’m sure people know what “Socratic wisdom” (or is it “Socratic ignorance”?) means, but to make sure we are all ad idem here is my definition: it is genuinely a wise person who realises the limits of his or her own knowledge. I for one certainly know what I don’t know – if you see what I mean

Why am I bothering to blog this obvious and trite observation? The reason is, and it may make me (new) enemies, is that I fear that matrimonial lawyers are often lacking in Socratic wisdom. We all, and I include myself, tend to judge, trivialise, analyse and even write off the personalities and motivations of the litigants in our cases in a hasty and shallow way. How often have you, and this is addressed to the thoughtful matrimonial lawyer (whoever that may be) heard yourself speaking of a “controlling” husband or an “unrealistic” or “embittered” wife and then basing your strategy for the case on this simplistic judgement? It is so very very hard to maintain objectivity and balance, avoiding the knee-jerk reaction of a simplified and caricatured view of the “opposing” party. That is often what our clients feel themselves – at one level at least – and they welcome it if we vilify and demonise their ex-spouses; it shows that we are “on their side”. But it is, in my view, rarely the full story

What has most brought home to me the fallacy here is twofold: firstly the experience of final hearings where the parties actually give evidence and have their own “voice”, and secondly the experience of mediating cases myself and being able to see beyond the surface of the parties’ surface positions and apparent motivations

I have lost count of the number of times I have been told recently “there’s no point putting that offer to him (or her), I know what he (or she) is like …..”. Divorcing people often feel that they understand the deepest motivation of their ex-spouse and can predict what he (or she) will do rather as a chess player foresees the moves of an opponent. But they are hardly objective are they? The danger is that the lawyers also subscribe to this school of thought and form their own views of the parties as if they were characters in a play not real 3-dimensional people

My own view is now that (a) I am nowhere near as good an amateur psychoanalyst as I have for years believed (b) people are complicated and I rarely understand them fully, and (c) it is dangerous and unwise to assume things or predict people’s future actions based on a limited understanding of what motivates them. Put simply, I now know that I know very little about other people. The consequence is what, you ask?

Well, when my children were much younger one of them asked me as we were watching a film on TV “but which man is the goody and which one is the baddy?”. My reply was “well, they both have some good in them but also some bad things ….. a bit like me really”. As an intelligent girl she thought this absurd – typical of her father to blur boundaries – and after a time decided for herself who figuratively wore the white hat and who the (baddy’s) black hat; then she was happy and knew which character she should identify with and which one she could hate. Now she is a young adult of course she knows all there is to know about everyone and everything, and judges everyone (above all myself) with utter self-confidence. She will learn, I hope

The moral of this post is a humble one: let’s try to keep an open mind (and encourage some optimism) about the deeper motivation of divorcing partners. Please don’t rush to pigeonhole people or write them off in a single stereotyped phrase. It is tempting I know, but most people are, at some level, complicated and if we try to appeal to their good side (or at least keep open that possibility) it may well be much better for everyone

Am I talking sense here? Or is the world really so black-and-white? Maybe we divorce lawyers have the godlike knowledge and understanding to sum up litigants in a simplistic way and are quite right to run our cases based on our superior understanding of humankind. Or not …

Food for thought? Polite comments and feedback will be welcomed

Mediation or collaborative law – pros and cons

Further to my very recent – a few minutes ago – post (Mediation – how long is too long?) I have been asked another valid question about last week’s post (Mediation of Divorce Finance Cases in Practice (continued)) this time by a collaborative lawyer called Celia Christie, and I want to provide a specific answer

Her question is whether the couple I posted about would have benefited from the collaborative law process, on the basis that each party would then have had the opportunity of separate legal advice throughout. I should make it plain that the process in which I took part as mediator did allow legal advice and representation but, for reasons of cost, the parties and their solicitors decided that the lawyers would remain in the background on the day of the mediation. One party did involve his/her solicitor on the day, but in a very limited way, whereas the other chose not to do so, even though she was available throughout on the telephone

But turning to collaborative law, frankly I don’t know whether the 2 solicitors in question were collaborative practitioners but my own take on the nature of the case is that it would not have been suited to collaborative law at all. I have 2 reasons:

  1. There was considerable mistrust and suspicion between the parties, and they were each convinced that the other was being evasive or economical with the truth on several factual points
  2. There was one particular issue – central to the dispute – where one party openly and directly accused the other of dishonesty. I cannot, for reasons of confidentiality, be too specific but suffice it to say that there was a significant “financial resource” linked with a 3rd party (let’s call it Resource A) which divided the parties. One party (Party 1) denied having that resource available but the other (Party 2) stated that he/she knew that this assertion was false, and could prove that it was a lie (but interestingly chose to keep his/her evidential powder dry)

As it turned out I was able to broker a settlement on the explicit basis that Party 2 agreed the terms regardless of whether Party 1 had access to Resource A or not, and that there would be no ground for re-opening the agreement even if in the event Party 1 did benefit from it (does that make sense? I hope so). This was the breakthrough, and the basis of the pre-amble to the written agreement signed by the parties

I am not a collaborative practitioner myself but my belief is that for the whole concept of collaboration to be workable there needs to be a basic level of trust and respect between the parties, and that the lawyers would struggle with facts remotely like those explained above. If I am wrong I expect someone will set me straight on the point ……

Mediation – how long is too long?

My last 2 blog posts have been “syndicated” by Flawbord – a rather good Family Law blog site – and an interesting comment/question has been put to me by a family mediator, Stephen G Anderson. Rather than respond in the format of a small comment box I think it worth posting a fuller reply here

Stephen’s question was whether I thought that a full-day mediation was too long and could lead to the parties compromising from tiredness rather than a genuine desire to resolve the issues. Stephen is a family mediator and, he explained, they tend to limit mediation sessions to 90 minutes. On Flawbord my older blog posts do not appear, so Stephen, and anyone else reading the 2 recent mediation posts in isolation, will not know my own background

I am not a “family mediator” (in the technical sense) although almost all of my mediations relate to divorce finance cases. I am a barrister with a practice in that field and trained as a commercial/civil mediator with a view to offering a service to divorcing parties and their lawyers as an alternative to the Court process, or at least the need to appear at Court for an FDR or full hearing

As far as I know family mediators – who have a different form of training and operate the mediation process differently –  tend to see parties several times, obtain from them the facts and figures, summarise those facts in writing for them and then try help them to reach an agreed solution. The parties may or may not have solicitors, but if they do the role of the solicitors is usually secondary

The sort of mediation which I offer is intended to be for more complex cases where the lawyers have completed the disclosure process and made offers but wish to explore a mediated solution. This may be for many reasons eg the cost of the full Court process, the nature of the dispute, the personalities of the parties or any number of other reasons

My expectation was (but I am in the course of revising that opinion) that the lawyers would attend and participate in the mediation, in very much the same way as a Financial Dispute Resolution hearing would take place at Court. The lawyers can then provide full legal advice and help with the form of settlement which can be put before a Court

In this context I see the parties (with or without lawyers) only once, and allocate a full day for the process. This is necessary, because I have never had the chance to prepare the parties in preliminary sessions and it’s inevitable that working right through a difficult and complex case from scratch does take most or all of a day. This is exactly the same as the FDR process at Court where negotiations regularly continue until late in the day (at the PRFD in London I know from experience that the security folk close up and turn on the alarms at 7:00pm!)

I recognise that there is a risk of parties settling cases from tiredness or desperation after a full day of mediation and negotiation, and do what I can to guard against this eg by encouraging people to take breaks, eat and drink or even go out for a walk to clear their heads. In practice when I’m shuttling between the parties in private session the other party, ie the one I’m not with at any given time, has plenty of time to unwind and relax a bit. They are rarely alone during that time, having a lawyer, friend or relative with them in their room, and can recharge their batteries somewhat. I don’t generally have open/joint sessions – which are more stressful for the parties – lasting any longer than 90 minutes

In the end the parties are adults, they have signed up to a day’s mediation, it is their decision to make and it does take a long time to sort out these disputes. Before anyone signs anything I always emphasise that they need to be clear that this is what they want to do, and that they should not feel under any pressure to settle on terms they are uncomfortable with or if they are confused. In extremis, eg if one party is clearly too emotional or exhausted to give proper consent to an agreement, I might even decline to accept that “agreement” and simply end the mediation (as my mediation agreement allows me to do at any time for any reason)

And this is one of the classic mediation training questions of course: “what would you do if ….”. The answer will depend on the particular situation in my view and the best (but annoying) advice is not to get into that situation in the first place!

Mediation of divorce finance cases in practice (continued)

My last blog post was slightly confessional, admitting as it did that I was apprehensive about mediating a difficult divorce case, one which to some extent involved children issues as well as money ones, without direct involvement of the lawyers. Now that the dust has settled and I have some perspective I feel I have taken a step forward in my mediation practice and can explain how I ran the mediation, and why

This may be of interest to other mediators, to solicitors considering whether mediation of this type is worthwhile and to potential clients. I certainly found it challenging and an interesting experience myself. Setting these things out in writing is instructive for me and helps me clarify what took place

Stage 1: I gave a very full introduction to who I was, what I was hoping to achieve and the ground-rules I wanted people to agree. Above all I emphasised the “no abuse, no interrupting, no snide comments” concept and the key fact that I was not there to advise them or make their decisions for them. To their huge credit both parties, who had a lot of “baggage”, kept to that rule very well and were extremely apologetic (to me) when they transgressed

Stage 2: I then more or less forced the parties to spend more than an hour in open session, going through the issues and their diametrically opposed views on them. I deliberately resisted the temptation to go into private session so that each could speak confidentially to me. The plan was for them to vent their feelings, tell each other their main objectives and, if I could, establish an order of priorities. There was plenty of venting and borderline-abuse but each party saw the world so differently that I was not at all surprised that no progress at all appeared to be made

Stage 3: eventually, when it was in danger of becoming repetitive I drew the open session to a close and spoke at length to each party in closed session – in separate rooms – on a confidential basis, shuttling backwards and forwards. Each spouse had some form of offer to make to the other, but with very little common ground. I tried to hive off certain especially contentious issues (one being an urgent decision about schooling for their children) in an effort to establish some consensus but failed. This was, I would say, low water mark for the day and even a rather good plate of sandwiches and nibbles for lunch made no difference for anyone. I was at this stage, frankly, even more pessimistic than before …. what on earth could I do to make some progress?

Stage 4: being rather disappointed with the parties and their reluctance to look for common ground (a mediator tends to think “if they won’t compromise on anything why on earth did they agree to mediate in the first place?”!) I then demanded that they went back into open session and told one another face-to-face why they were quite so resistant to compromise. The idea was that they would have to accept that the log-jam was down to them and no-one else. I pressed them to “haggle” and engage in some horse-trading: “if X were to concede on Point 1 why won’t you consider giving ground on Point 2?” and so on. If the mediation was to end in failure I was going to have my say in as direct and confrontational a way as etiquette allowed; the time for polite suggestions had passed and I felt I needed to challenge people’s views strongly, reminding them of the cost and stress of the alternative ie 6 months or more of expensive litigation

Suddenly things began to change as they ignored me and addressed one another directly, saying things which they had not said to me before. [Note to self: the positioning of people around a table is VERY important]. With a little forceful steering there was suddenly a structure available which each could just about accept. The husband was given time to raise money. In return he agreed to fund another 6 months of rent for the wife, who could then just about afford to buy what she regarded as a suitable house. She then (with some pain) agreed that they needed to discuss the schooling for their children as a family on an urgent basis and that her preference of school was not after all a deal-breaker overall. Once this momentum started things fell into place more and more easily, and each party agreed to things which 2 hours before had been non-negotiable. I acted as chairman/ringmaster only, with the parties themselves negotiating and resolving the secondary issues

Stage 5: I was fortunate that the meeting was held at the offices of one firm of solicitors, so a full typed Memorandum of Agreement was prepared and signed there and then. This was emailed to the other party’s solicitor, who was also available on the phone, although her client said that he did not require her advice because he was quite content with the deal which had been negotiated

Other than the schooling issue, which was set to one side for further discussion, the whole range of financial issues were settled. Both solicitors were taken aback but delighted that the final 2 hours of the mediation had brought about so much consensus when so little had seemed feasible before. The solicitors had clearly (reading between the lines) advised their clients that litigation was likely to eat into family funds to a disproportionate extent, and that they should strain every nerve to compromise and settle. It was clear that the mediation process had somehow enabled them to resolve matters in a way which would have been unlikely at Court, given the nature of the issues

With my barrister’s hat on I am pretty sure that neither party could later resile from such an agreement, based as it was on full disclosure and ample legal advice. I cannot know for sure but both solicitors were experienced, able practitioners and I strongly suspect that the deal which I managed to broker was close to the outcome which each client had been advised as the likely outcome if (spending £25,000 or so in costs along the way) they argued the case right through the Court system. I believe that the total cost of my mediation day was less than £2,000 split between the 2 parties, all in, so it was plainly a cost-effective way to solve the dispute

As far as I know everyone left the building reasonably content with the process and the outcome. I know I did

Mediation of divorce finance cases in practice

The Summer is now officially over, and I am resuming my blog after a considerable gap. In July I wondered whether I was “blogged out”, but (now that the outdoors is less appealing) I find I still have plenty of things to say. Whether my ideas, thoughts and observations will be of interest I cannot say, but the WordPress analytics will tell me in fine detail …. others have said that blogging is – like Twitter – a cumulative thing and that a following is gradually built up over time as blog-surfers find a voice they like to follow. Let’s see

So, to business. My last blog post was rather a long one about the advantages of commercial mediation as a way to resolve difficult financial cases in divorce. Oddly enough last month I was asked to mediate just such a case, one which the solicitors had found impossible to “unlock” via the Courts and where the cost of fully litigating all the points at issue would have been prohibitively expensive. I was under the clear impression that the solicitors and the parties regarded mediation as at very least “worth a try”, but were not at all optimistic about it achieving very much

The key factor from my perspective, partly driven by cost, was that the parties were to take part in mediation without their solicitors being present. I was, as I realised with some trepidation, on my own …… for the first time. This was something definitely new to me

Until now I have always had lawyers involved in the process to bounce ideas off and, in private session, as a form of (sorry for the jargon) reality-check. I have always found it useful to be able to put to the lawyers questions like “but how likely is the Court to accept that argument?” and to debate the pros and cons of a particular point professional-to-professional. How should I adapt my working methods when dealing with the parties themselves direct?

I should also admit – although I am not proud of it – that I was apprehensive about coping with the “rawness” of an encounter between divorcing spouses with just the 3 of us in the room

However, armed with 2 pieces of advice from colleagues at Clerksroom, I arrived early and prepared for a gruelling day. In case you were wondering, the advice (which is possibly in the nature of a trade secret) was as follows:

  • Jonathan Dingle – doyen of UK mediators – in his mediation training emphasises that he favoured very much keeping the parties in open session for as long as possible initially so that they could each hear directly what the other had to say (however painful and stressful it may seem at the time
  • Barry Havenhand – an experienced and magnificently calm mediator – said to me that he generally allows people to “talk themselves out” and never gives up hope that after a number of hours attitudes will, as people lose their initial aggression and anger, soften and compromise emerge

The details of what transpired at the mediation are for my next blog, but suffice it to say that after 7 hours of hard work we managed not only to resolve the 2 key pressing issues but the whole bang-shoot. The solicitors, who were kept informed of “progress”, of which there was none at all for 5 hours, were frankly amazed. I think the parties themselves also reached a “how on earth did we get here?” frame of mind. But a detailed agreement was written out and signed – case settled!

More next week on this one ………

Finally, if this blog is read by other mediators or wannabe mediators I do recommend the Clerksroom/London School of Mediation annual training sessions very highly. Each year I find I learn something new and am usefully reminded of the basics too. The role-plays are never less than entertaining and often very thought-provoking. If, like myself, you are not mediating frequently then it is absolutely invaluable to do a CPD session which keeps your skills up to date and stretches your thinking a bit

“Commercial” mediation in divorce finance cases

I have a theory – in fact I have many theories – that in a large proportion of divorce finance cases there is a place for civil/commercial mediation instead of, or as well as, the Court process of Financial Dispute Resolution (“FDR”)

First I should declare an interest, in that I trained as a civil (not a family) mediator with just this line of thinking in mind. So I am promoting the services of a particular type of mediator, someone experienced in complicated finance cases but with the right mindset to mediate intractable or “deadlocked” cases. Someone capable of lateral thinking and who can engage psychologically with hard-bitten lawyers and their apprehensive clients. You will not be amazed to learn that I think I fit the bill for such a mediator, but then so do plenty of other lawyers, and for that matter the range of retired Judges who now offer themselves as mediators

Next I should distinguish Family Mediation, which is an excellent process for resolving less complex cases where the parties have a reasonable level of trust in one another. If the parties are on civilised terms it is cheaper and more satisfactory for them to sort out their financial differences with no direct involvement by lawyers in the mediation process and solicitors in the background only. A good family mediator, and there are many, can bring about a legally-sound and personally-satisfying outcome for divorcing couples at reasonable cost. This outcome may cover children, money and other issues too. More power to their elbows

However, the species of mediation to which I refer is one where lawyers are closely involved, and where the mediator restricts himself or herself to the central (and usually demanding & complex) financial questions which could otherwise occupy several days of Court time, and has often polarised the parties’ views to a very high degree

Since I qualified 3 years ago I have been surprised how little apparent demand there is for such a service, and I would like lawyers to open their minds to its merits. When I suggest this option the 2 questions I am usually asked are as follows:
a) “what is the advantage of mediation over a 3-room settlement meeting?” and
b) “why bother with mediation when an FDR is more or less compulsory and appears to be a very similar process (early neutral evaluation, as it is called by academics)?”

It’s easy, with suitable tact and discretion, to answer (a); the dynamics of many cases are such that the parties and their lawyers are entrenched and fixed in their views as to what is “fair”. We all know that there is no single, objectively-correct answer to such cases and that opinions inevitably differ. Each party tends to become convinced that his or her case is fair and that the other party (and probably that party’s lawyers) can only be showing a greedy, unreasonable or deliberately obstructive attitude. This is EXACTLY where a mediator can act as a bridge between the parties and a catalyst for new ideas. I genuinely believe that this sort of mediation provides a much better opportunity to break the deadlock in a difficult case, and allows a much more productive process to take place than simply having 2 antagonistic “sides” battling it out in an adversarial way in a settlement meeting

The answer to (b) comes in 2 parts. Obviously, the theory of what should take place at an FDR is fine and dandy but the reality is often different. The chances are that many FDRs do not in reality conform with the theory; they often take place in cramped, uncomfortable conditions at Court – limited conference rooms being a common complaint – with inadequate time, nagging ushers and highly stressed clients. See my blog Judicial Reading Time for some further thoughts

Oh, and (since the odd Judge, and it would have to be an odd one, might read this) I shall diplomatically say that Judges are usually over-listed, under pressure and just sometime might, er, lack 100% understanding or commitment. You know just what I mean

So if the case is time-consuming. complicated and demanding a mediation in comfortable surroundings, with IT support available and no time pressure starts off with a much better prospect of success than many FDRs at Court

But even if the FDR suffers none of the drawbacks outlined above there is still a fundamental difference between an FDR and mediation, above all in the flexibility of the process & the level of involvement of the (lay) clients in it

The advantage of the FDR is that, in theory, the Judge will provide a clear objective evaluation of the merits of the case and “recommend” the solution which is likely to be imposed if the proceedings are decided by a(nother) Judge at a final hearing. In many – easier – cases this is true

However, sometimes there are disputed factual issues – which pose a problem for the Court at FDR – or challenges to the expert evidence which inhibit forming a clear view on the merits and often a Judge will find it difficult to evaluate eg housing needs. Sometimes the finances are just too complicated to grasp in a time-limited hearing. In such situations the Judge will emphasise that an FDR is a “snapshot” of the parties’ finances and that without hearing oral evidence no definitive guidance can be given. On occasions the FDR Judge will simply not “get” what the case is about, from lack of detailed familiarity, and give either vague or plainly misinformed guidance

I have even noticed a trend recently in which opponents give less and less credence to the views expressed by an FDR Judge, if they are adverse ones, and bluntly refuse to respond to my killer-line, which is this: “the parties have paid a lot of money to find out what a Judge thinks of this case so surely we all have to be guided by what this Judge has told us?” If the Judge disagrees with my own case I confess I tend to do likewise

So this is where mediation comes in. It is commonplace for mediation to take place against a background of uncertain or disputed facts. The mediator has no other cases to wrestle with that day and can listen at length to what either party has to say either in open session, with everyone present, or in confidential private session. If there are underlying personal tensions or issues between the parties themselves these can be acknowledged and debated, and it can be surprising how often non-legal (and even non-financial) factors do influence the degree of co-operation which people are prepared to invest into the settlement process. People are stubborn and want to settle old scores with their ex-spouse, and are often determined to have the last word in the argument – egos and pride are sometimes as important as anything else. There are regularly misunderstandings and confusion about the motives for elements of each party’s case. And finally I do sometimes wonder whether the opinions of absent 3rd parties carry a lot of weight in clients’ minds: “what will I tell mother/partner/my mates at the pub?”

And there is no question in my mind at all – and this applies to me as much as to anyone else – that the egos of the lawyers can inhibit settlement too. If I have advised someone from the outset that, say, the house will definitely be sold it isn’t easy to backtrack and contemplate the opposite outcome. My own credibility is on the line at Court, and no lawyer likes to “lose” any more than their clients do

Mediation is designed to overcome, or rather sidestep, such problems. The skilled mediator will encourage the parties and the lawyers to think anew about the case, the settlement options and whether it is worth going to Court at all. The mediator will try to understand the underlying motivation of each party, discuss alternative ways of thinking and see whether a solution can emerge which is acceptable to both parties. In many mediations is is surprisingly effective for one party simply to acknowledge the problems – personal, business or financial – faced by the other; this can change the tone of the negotiations dramatically

And funnily enough the mediations which are difficult tend to be ones where there is only 1 question to answer (usually “how much money is to be paid?”) so there is no scope to trade off different elements against each other, and where there can be no ongoing relationship between the parties after the dispute is resolved. In most divorce finance cases there are many elements to the settlement, so lateral thinking is feasible, and the parties would prefer to be on civil terms for the future eg in the interests of their children, or even because after many years of marriage it is just more “comfortable” to be on acceptable terms with an ex-spouse

And I’m sure I need not emphasise that a consensual outcome, arrived at via mediation where both parties themselves “have their say”, is likely to be more psychologically acceptable to the parties since it has not been brokered by Judges and lawyers in the formal surroundings of a Court but is the product of a process in which they were personally and directly involved, yet with input from lawyers throughout

So, and I have gone on a bit I know, I genuinely believe that a civil-commercial mediator with a sound grounding in divorce finance work, a pleasant manner and the right mediation skills can often achieve more for the parties than an adversarial settlement meeting or a stressful FDR

Do think about this please, and ask yourself whether in recent cases you have very much wanted a way to break though the apparently aggressive negotiation process and the resulting deadlock with each side denigrating the other and hesitant about showing any “weakness” at all. Intelligent and thoughtful divorce lawyers must surely realise that once all the disclosure and analysis is completed the adversarial way to reach a settlement may not always be the best one

If I sound a bit evangelical here I apologise, but I was originally very sceptical about mediation indeed. However, I have been on both ends of this sort of mediation (as mediator and as counsel for a party) and have had my own mediation training and some very limited exposure to such mediations. I am now convinced that it is a good thing and has a valid place in the process of resolving divorce finances cases

I hope in time you will agree. Many Judges agree already

By the way, I am also hoping that I have succeeded in avoiding mediation jargon and clichés in this blog. No mention of “positional bargaining” or “facilitation” or the like at all. If any has slipped in by mistake do please comment and I will edit them out at once