Family Mediation Week 2022: A Guide to the Financial Mediation Process

17 January 2022 – 21 January 2022 is Family Mediation Week, which aims to raise awareness of mediation and how beneficial it can be to those going through divorce and separation.

As such, Partner and Family Mediator Lindsay Halliwell and Michelle Bettell , Associate and Family Mediator, sat down to discuss the financial mediation process, how it works and why it can be beneficial for clients.

Their in-depth conversation also highlights who can be involved and what supporting documentation clients may be asked to provide.

You can watch their discussion or read the transcript below…

Video sub-topic timestamps:

00:00 – Approaching Financial Processes In Mediation
00:40 – Form E
02:08 – Supporting financial documentation
03:46 – The clients’ process
04:20 – Financial disclosures
05:29 – Confidential discussions
07:13 – Compromise
09:10 – Bringing other professionals in
10:35 – Solicitors sitting in on Mediation
13:03 – Costs involved
14:04 – Conclusion

Video Transcription

Approaching financial processes in mediation

Lindsay:
So Michelle, financial processes in mediation is a hot topic at the moment for clients. How do you approach it?

Michelle:
So, Lindsay, we obviously both deal with financial mediations. We would’ve met both parties for their initial assessment meetings first. So what I explain to clients in that meeting is in order for us to have informed discussions about the finances, then it’s really important that there be a disclosure of the parties finances.

Form E

Michelle:
I tend to suggest to most people that we complete a Form E or they complete the Form E. The Form E is the document that the court would expect parties to complete if they were going through court proceedings as you know. I explain to clients of course, that the reason they’re coming to mediation is that they want to avoid court proceedings, but it’s still a really handy document to have to get all of the information in one place. Do you do the same? Do you suggest Form Es?

Lindsay:
Yeah, I do the same. I know previously there was a shortened version with mediation, but I think the more information we have as mediators, the fuller the options are that we can provide to the clients. So I think Forms E are just so helpful. I know clients can sometimes find them quite a laborious task to complete, but they are so helpful because they ask all sorts of questions about clients’ financial circumstances. It just gives an opportunity to identify what the issues are, what we need to think about in terms of other support for the clients and options and ideas for them to make their own decisions.

Michelle:
I mean, as both, you and I are practising family lawyers as well. So we are aware of the roundabout advice that both parties are likely to be given and also the procedures. So it’s really helpful for us. Isn’t it? When we refer our own clients to mediation, to have that Form E come back.

Lindsay:
Definitely.

Michelle:
So that we can see what each party’s finances are and we can advise our own clients on it. It’s really important that we can then offer both parties lawyers that information too.

Lindsay:
Definitely.

Supporting financial documentation

Michelle:
I was going to ask you actually, Lindsay, about the supporting documentation, because as you work through the Form E, it asks you for supporting documentation. So bank statements, things like that. I do have quite a few clients say to me, “Michelle, we know what each other’s got. We don’t necessarily need to troll through each other’s bank statements. Do we need to give you them?” From my point of view, my role as a mediator is not for me to go through them anyway. So I’m there to manage the process, but if both clients say to me, “Michelle, we don’t need to see each other’s documents in support.” I tend to say to them, “Well, that’s a matter for them.”

Lindsay:
I agree. I think we are impartial as mediators. We’re not there to provide advice and we’re there to provide an environment for people to be able to openly share their ideas and thoughts and provide their financial information. I think it’s so helpful in mediation for us to have a discussion together to say, “Where are you coming from with this? Do you have a good idea about each other’s finances or are you coming at it quite out of the dark? Do you need to know a lot more about each other’s financial circumstances?”

Lindsay:
So I think it’s good that we share the same approach, obviously working together anyway, but we obviously are flexible with clients and we want them to tell us where they are on the same page, on different page, with their financial information for one another. Do we need to look out Forms E? Do we have supporting documentation? But at the end of the day, it maybe a decision for them to take with their solicitors as to what they feel is right for them. That’s when we would suggest take advice from a solicitor if you want to.

The clients’ process

Michelle:
That’s another benefit of mediation. Isn’t it? It’s their process. They can deal with that as they want and as mediators or lawyer mediators will just give the information and they can make that decision.

Lindsay:
Yeah, definitely. So I think we’re the same in that sense, in that we’re flexible with clients and we’ll meet with them with their initial intakes, discuss what the issues are with them, identify where we might be able to assist with those discussions. It’s a case of discussing with the clients at that point what sort of disclosure are we looking at? What’s going to be most helpful for them essentially in the intake session?

Financial disclosures

Michelle:
I think quite a few clients actually ask me about that financial disclosure and say, “If I give it to you, do you have to share it with the other person?” So I often have to remind clients that actually my role is completely impartial. Anything that you share with me, I need to share with the other person. Also, I have to remind clients quite often that the financial disclosure that they provide isn’t confidential, unlike the discussions that we have of course, and that the financial disclosure is factual. So they’ve got a duty to provide each other with that anyway and that, that can be used in court proceeding for example, if that’s where the parties sadly might end up, if mediation breaks down.

Lindsay:
So when we’re going through the mediation process, we are having discussions with our clients about ideas, proposals, suggestions about how they might want to resolve matters. You were talking earlier on about financial information being open as we call as mediators. That can be presented to court if they end up going down the court route.

Confidential discussions

Lindsay:
But there’s a difference, as you were saying earlier about the discussions that we have in mediation and that they are confidential, private. They’re closed between us otherwise known as legally privileged or without prejudice. Do you want to talk a bit more about that?

Michelle:
Yeah, I think it actually, that’s a huge benefit of coming to mediation, isn’t it? You can feel that you can come to mediation, make proposals, have discussions and not feel actually that what you are discussing and suggesting at this stage is going to be used against you and you’re not bound by it. Because you can come to mediation and the costs are going to be significantly less than if you’re going to proceed through lawyers and through court. So you may be of the view, “Look, if we settle at mediation, which is going to be done a lot quicker and a lot more cost effectively, then I might settle for X, Y, and Z. However, if we go to court, I then need to factor in the time that it’s going to take, the stress that it’s going to put upon me and the family, the money then it’s going to cost. So I may not then settle for X, Y, and Z. I’m probably going to be looking for a little bit more.”

Michelle:
So it gives clients that option really, and that freedom to come and discuss with us openly, but bearing in mind that it stays between these four walls, of course, with regards to discussions. But that leads on that clients will say, “Well, if it’s all privileged and we can’t rely on it, what happens next?” So we would put that within a summary, which too would remain confidential. Then that can be taken to a lawyer to have it drawn up into a binding document of course. So the time that they spend at mediation to discuss those proposals is not wasted.

Compromise

Lindsay:
Sure. I think having the opportunity in mediation to air your thoughts and ideas and proposals, etc between us is helpful for people to be able to think, “Actually I’m going to compromise here.” Because that is the idea of mediations. That both parties needed to compromise. Otherwise, that’s why you are in court. But in mediation, the idea is you each give something, consider each other’s proposals with an open mind. You might not agree with the other person’s perspectives and things. But if you are open to listening to that, it might just open up communications, some other ideas. With compromise, hopefully clients will make their own decisions.

Michelle:
Of course, we’ll help them and facilitate those discussions because sometimes, well, quite often actually I’ll have clients come to mediation and they’re saying the same thing, but they just haven’t heard it. They haven’t actively listened to what each other is saying. If they have solicitors, they may have put it in writing, but it’s not been communicated probably in the right way. As mediators obviously we can rephrase and we can help clients understand where each other is coming from. We can work through with them well, where the court is coming from as well being practising family lawyers.

Michelle:
So we can work through with clients, the factors that the court take into account when they’re looking at matrimonial division of finances, what the court can and can’t do within matrimonial finances? So it gives the clients information that they can build their decisions around by helping them understand where each party is coming from and both you and I, I am aware we’re quite assertive mediators in that we will make suggestions. We’ll say, “Look, we are experienced, we’ve had experience with lots of different families in lots of different situations. Every single case is different. Have you thought about this?” We have discussions between the three of us.

Bringing other professionals in

Michelle:
Just on that point, actually
I say the three of us, we can also bring in other professionals in of course, if it’s necessary.

Lindsay:
I think we’ve both done that. Haven’t we? Fairly recently as well and I brought an independent financial advisor in he’s been jointly instructed by the clients to be able to help them to assess their pension situation, for example. It’s so helpful having a professional person supporting mediation with their own specialism. Obviously we can’t provide financial advice and it’s helpful for the clients to be able to hear from the legal perspective, legal information from us, but then also the financial advice as well. But I believe you’ve had other people involved in your mediations as well.

Michelle:
Yeah. I mean, you can have all sorts of professionals involved really, can’t you? So you can have IFAs, specific pension advisors and also, other people to assist. We also deal with a lot of mediations, not just dealing with finances, but also dealing with child arrangements. We can offer child in mediation where the children can be involved in the mediation process. I would say they’re not involved in the mediation sessions that we have between the adults, but it’s something that we can discover. So professionals can be brought in that side of things as well. Again, every case is different and we’ll discuss with the clients what works for them and what they need.

Lindsay:
Absolutely.

Solicitors sitting in on Mediation

Michelle:
Have you ever had solicitors sit in on mediations?

Lindsay:
I haven’t personally so far. It was a discussion about the possibility on one occasion. As a solicitor, we would love to be sat in mediation, supporting our clients, but as mediators, it’s so important that we do our best to be able to help the clients as really holistically as possible. Because we’re sat there in an environment that is promoting positive civil respectful communication, and it’s a non-adversarial process. Sometimes people’s perspectives could be that solicitors involved in mediation might add that adversarial element.

Lindsay:
So it’s generally helpful as a mediator, if we are with our clients on our own, to be able to just explore some ideas, some options that perhaps solicitors might not have necessarily advised their clients to consider. But ultimately it’s down to the clients to decide what’s best for them, what’s best for their family as a whole with us giving legal information about the court’s approach so obviously. But it is a possibility to have solicitors involved if it’s needed essentially for emotional support for the client. They can be in the same room, they can be in a different room, but it is possible. Have you had that?

Michelle:
I have had a solicitor involved on one of my mediations some time ago. The reason for that was because one of the clients was particularly vulnerable. Again, when we meet with the clients initially, we give the clients the option as to how mediation might work for them. One of the mediation processes that we can offer is shuttle mediation. So the clients are sat separately, if for whatever reason they feel that they cannot sit together. Also, we assess, don’t we? Whether or not, depending on the level of emotion, complexity whether the clients actually should be sat together.

Michelle:
It depends on what everybody thinks would work best. I mean, everybody wants to achieve a result and an agreement at the end of the day.

Lindsay:
Absolutely.

Michelle:
So how do we get that? In that particular case that I dealt with where the solicitor was involved, that was a shuttle mediation, and one of the parties was particularly vulnerable. I felt she needed that extra support and advice in order to assist her in understanding what we were talking about. Both clients agreed with that process and as did the solicitor.

Costs involved

Michelle: What clients also need to bear in mind of course, is that there is a fee for mediation.

Lindsay:
Sure.

Michelle:
If solicitors are going to be involved, they will have a fee also. So there needs to be decision and consideration as to whether it’s necessary to have a mediator’s fee together with a lawyer fee. Parties often come to mediation to try and keep their costs down.

Lindsay:
Sure.

Michelle:
So it’s not always, I would say actually, just give it a go. If you’re concerned and you really want your solicitor there, I’d probably suggest in the first instance, let’s see how we get on without your solicitor, because you don’t have to make any decisions during the session if you don’t want to. I would always suggest that you seek independent legal advice if you feel you need it, or I felt that anybody needed it.

Lindsay:
Absolutely.

Michelle:
I know you work in the same way.

Lindsay:
It’s keeping an open mind, I think is the key for mediation and we do that too. We keep an open mind as well. Everyone’s completely different in mediation and what works for them. So it’s an individual tailored process.

Conclusion

Michelle:
Exactly. Well, Lindsay, I think that’s been really helpful for me-

Lindsay:
Me too.

Michelle:
… to actually chat through what we do. I mean, obviously we work together every day, see each other every day, or be it remotely sometimes-

Lindsay:
Over a cup of tea.

Michelle:
… due to the current situation that the world finds itself in. But no, it’s been extremely helpful for us, I think. I really hope that, that will be helpful for people that watch.

Lindsay:
Definitely.

Michelle:
Hopefully it answers any questions that they have or any anxieties that they might have moving forward. But obviously you and I are always open to take any inquiries from anybody.

Lindsay:
Sure.

Michelle:
We’re quite approachable.

Lindsay:
We are very much so. Telephone, email, happy to answer any questions that clients have and looking forward to more mediation in 2022.

Michelle:
Yes, exciting.

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