Myths and Mediation

It’s National Mediation Week this week, highlighting this resource as a cost effective, low stress means of dealing with issues which arise on relationship breakdown.

Most of us would endorse the “anything but going to court” approach in relation to family law issues. There are few situations in which it can be seen as the optimum way of resolving a dispute. However, equally, mediation cannot in my view be seen as a panacea. There are certainly situations which arise regularly in my experience where mediation can paradoxically be highly counter-productive.

Allied to this is the view which has become prevalent amongst many people, that an equal division of all the assets on divorce in respect of financial claims is always the way forward, the just outcome. Well, what could be fairer than splitting things equally, right?

This myth, much like the myth of a common law spouse, is just that; a myth. Why are we mentioning these two things in the same breath? Well, quite simply, the prevalence of the notion of an equal split of assets, combined with the encouragement of the legal profession to resolve cases in any way other than via a court based settlement, or for that matter an argument provoking, contentious, hate-seeking family lawyers, can create a perfect storm of unfairness (OK, we’re exaggerating for dramatic effect).

One related question is half of what? We routinely see instances or anecdotes which suggest that its only right to share half of what one party feels inclined to share. Most often this means ignoring a pension, it’s in my name after all, and splitting what’s left.

Why this paradox, we hear you saying? Well in our view, it is simply this: the assumptions and bias which parties hold are incorporated in any negotiated process. One effective way to counter this is to employ someone who cares more about the law and representing the party in a way which although intrinsically adversarial, draws the right balance between fighting the client’s corner and a sensible, prudent approach. A family solicitor often fits the bill, especially one who is solution focused.

We have had many situations in which agreements reached through mediation have been brought to us for advice. The client produces the mediation memorandum, together with some financial information used as the basis for the settlement and asks me whether this is fair. At this point, we are reminded of the famous dictum from the court of appeal that fairness is much like beauty – in other words, it is in the eye of the beholder.

To some extent that is the case in relation to financial settlements, but the law is slightly more objective than the various notions of beauty that we may hold. What needs to be said loud and clear is that there are very few instances where an equal division of all of the assets is either appropriate, let alone fair.

The chief reason for this is simple; in the vast majority of cases the parties needs predominate. Most families approach settlement from a position of inequality. The evidence on this point is legion, and the statistics bear out one point: women tend to do worse than men in the long run following a divorce. That is unless you believe Barry Bloke in your local pub wailing about how he got screwed on his divorce. Research shows clearly, women tend to sacrifice their careers when they have children, this impacts on their earning capacity, their mortgage capacity, their pension contributions, etc etc etc. When a marriage in which the responsibilities have, by agreement, been shared in a traditional way whereby one party stays at home and the other maintains a career, on divorce or separation, the parties are left in profoundly different situations. This is the simple truth.

This means that on divorce, when we are looking at a negotiated settlement, one party has less and therefore needs more. The discussion then centres on what exactly are a party’s needs. Often we are reminded of the game show, The Price is Right, one side saying “higher, higher”, the other side “lower, lower”. This impacts on all aspects of the case whether it be housing needs, income needs or how a pension should be shared.

This rather unedifying spectacle can be mitigated with sensible legal advice, the question is how and when to obtain that.

We often advise clients attending mediation “in the background” so to speak. This helps because when there is an inequality in terms of knowledge, expertise and dare we say, the emotional/negotiation dynamic which may exist between the parties, mediation cannot in and of itself mitigate this, and one party may be applying pressure on the other to go to mediation. Often support is needed in the background from an experienced professional who can see the issues and facilitate a settlement without directly engaging in the mediative process.

So perhaps the way forward is not to see instructing a solicitor and mediation as an either or, but simply a supplement to a resource which hopefully enables the parties to reach a settlement. However, it should also be borne in mind that peace at any price is not the outcome which in the long term is likely to ensure both parties are in an optimum position.

It is for each person to determine for themselves a balance between, on the one hand the advantages of an early settlement of the financial claims and on the other, the long-term effects of say, foregoing a pension sharing order because that is what we agreed at the kitchen table and told a mediator it was so. Speaking to a solicitor about your case in advance of a mediation appointment can really help to clarify this, and the support which they can give during the process, particularly when financial information is exchanged, can play a vital role in ensuring your settlement is one that meets your needs and works in the future.

If you would like to know more about this, please contact one of the team to discuss this further.

Get in touch