13th Jan 2016

Resolving Financial Disputes in Mediation – the Myths

By David Allison

Mediation is great for resolving issues concerning children but you need a good family lawyer to resolve financial issues!”

Sadly, even in these supposedly enlightened times we still do hear statements such as these from time to time.  But they are wrong!  This is not to say that family lawyers are irrelevant or unimportant.  After all I am a family lawyer and spend the majority of my working life providing legal advice and representation to clients going through divorce and separation.  I am though fortunate enough also to work also as a family mediator.  I therefore see the very significant benefits to couples of resolving their issues in mediation.  Of course the cost is inevitably less (meaning that there is more for both of them and their children) but, perhaps more importantly, they are able to find a solution that they agree is OK for both of them, rather than one imposed on them or one that fits a standard legal outcome.  This is hugely important for any future relationship – crucial if there are children – but also often a major factor is their future self-esteem.

Legal advice to support mediation is of course important and sometimes crucial.  People need to understand what a court would do (or more accurately what a court might do bearing in mind there is such a wide discretion) in order to feel OK about their agreement.  Solicitors may also play a part in the mediation process either because one or both of the couple need that support in the mediation room or to provide individual advice that one or both need to get to an agreement.  Solicitors might also play a useful role in suggesting options to consider in mediation.

“Mediation is fine if both parties are honest but no good if there is any concern about disclosure!”

I suspect that most of us have heard this or something similar expressed quite vehemently.  It is also nonsense!  OK, there has to be some desire on both sides to get to an agreement in mediation and it is unacceptable for a couple to reach an agreement where either does not have the information they need to get to a solution.  But mediators should be (and usually are) challenging about the disclosure provided in mediation; they can ask the same questions as a family lawyer and there is the advantage that answers are provided in the room and can be challenged in the room. For this reason I would argue that early disclosure in mediation can be more not less challenging than in many other processes.

Of course if you have someone who is determined to lie and you will not get to the bottom of their finances without orders for disclosure then court may be the only option.  But you may realise that this is the case sooner in a face to face process like mediation than you would be able to in other processes where much is done in writing and/or between the lawyers.

There is also no reason why disclosure has to be dealt within the mediation.  I often mediate where a couple has been involved in solicitor-led negotiations for some time but an agreement has not been reached.  In these cases the disclosure exercise has usually been completed by the lawyers and a couple is trying mediation as a last ditch attempt to reach an agreement before court proceedings are started. I enjoy these mediations because it is evident that the couple have a much better understanding of what litigation will involve and hence are usually keen to avoid it.  Somehow agreement often comes relatively quickly simply because the couple have come together (perhaps for the first time in some while) and are at last able to hear what the other has to say.

So, don’t listen to the doubters and give mediation a try even if your finances are complicated and you are concerned about your spouse’s integrity.  After all, you have little to lose and potentially a significant amount to gain.

This blog has been written by David Allison , a director at Family Law in Partnership Ltd

To find out more about the range of family mediation services we offer at Family Law in Partnership, visit our mediation page, view our mediation brochure or contact our Head of Mediation, Dominic Raeside.