Mediation in Family and Matrimonial Matters (part 3)

In the previous part of this article, we discussed the initial steps involved in preparing for family mediation, including how parties contact a mediator or are referred by professionals. The mediator then undertakes tasks such as obtaining contact details, screening for suitability, and reviewing agreements to mediate. If you remember, we highlighted that parties must commit to the process and prepare anchor statements. What was also mentioned, documents and information related to the dispute are essential, ensuring a productive mediation session.

Stages in mediation

Opening phase

The first session (also known as the opening stage in mediation) is used to:

Welcome the parties to the process and develop a rapport.
Ensure that all parties including the mediator have signed the agreement to mediate.
Check whether both parties are still happy to proceed with mediation.
Lay down ground rules.

The mediator will usually make an opening statement which:

Reiterates the voluntary nature of mediation.
Reminds the parties that they are in control of the outcome and that they need to actively participate in each session.
Highlights his neutrality, impartiality and role as a facilitator of discussions rather than as an adjudicator.
Reminds the parties of the private and privileged nature of mediation.
Gives an overview of the stages in the mediation process.
Forewarns the parties that reaching agreement may not be an easy process and that an impasse may arise.
Reassures the parties that his role is to help them overcome any impasse.
Concludes by inviting each party to read their anchor statement to clarify each party’s goals and objectives.

The mediator may then clarify specific matters and summarise his understanding of key issues. This reassures the parties that the mediator has understood their respective concerns. Where possible the mediator will identify any common objectives.

Identifying issues and setting the agenda

Part of the mediator’s role is to identify the issues in dispute between the parties. This can be done in individual meetings with each party or during the first joint session. Separate sessions can be helpful for each party to explain their positions and concerns without fear of interruption from the other party. The mediator will establish what, if any, discussions have already taken place between the parties outside of mediation and how these have narrowed the dispute, if at all. In doing so, the mediator will try to find out what, if any, underlying issues are driving the dispute.

Based on these discussions, the mediator will formulate and agree an agenda with the parties.

Information and document gathering

Completed mediation information forms provide the mediator with initial factual information. In relation to a financial dispute, technical information in the form of valuations will need to be gathered. As mediation is a consensual process, the parties will be encouraged by the mediator to obtain technical information by jointly instructing a suitable expert.

The mediator will also help the parties deal with financial disclosure. While the mediator cannot verify disclosure, he can ask a party to produce additional supporting documents, if necessary.

Information and document gathering is usually a continuing process in a financial dispute. Disclosure may need to be supplemented or amended as assets are sold or as the parties’ circumstances change. This does not however mean that the parties cannot begin to identify potential settlement options. This can be done while information and documents are being collected. Once information and relevant documents are available, the parties can then review and test the options discussed in the light of the disclosure.

Once all of the relevant information and documents have been gathered, the mediator will prepare an open financial statement setting out the parties’ financial circumstances. If mediation fails to resolve all of the issues in dispute, the open financial statement and any expert reports that the parties agree can be used in subsequent litigation. This will avoid costs being duplicated by repeating the disclosure process.

Discussion, identification of options and negotiation

The agenda provides the framework for the parties’ discussions. The mediator will question the parties and summarise discussions to form a better understanding of the impact of the dispute and their respective interests and priorities. The mediator may also encourage the parties to discuss emotional issues, which may unconsciously be blocking the path to achieving settlement. The mediator will begin to develop a joint problem-solving approach.

He will encourage the parties to focus on their anchor statement and to identify and explore possible settlement options. He will also encourage one of the parties to make the first settlement offer.

Potential settlement options will need to be evaluated by the parties, with the help of the mediator testing how each option will work. This will facilitate negotiation between the parties. During this phase of the process, emotions can run high, and an impasse may be reached.

Emotions have an impact on any dispute. The mediator will deal with any emotional issues by acknowledging and demonstrating an understanding of the emotion. He will also reassure the parties that it is normal to feel a certain way and will then refocus and bring the parties back to the issue in dispute. The mediator will facilitate discussion where necessary and use various techniques to help the parties move beyond any deadlock. These are also known as impasse strategies and include:

Reality testing and evaluating the workability of options that have been identified as potential solutions.
Identifying any possible settlement options that have not already been considered.
Leaving difficult issues to be resolved at a later date, once the parties have had the benefit of a cooling-off period.
Highlighting the consequences of failing to resolve the dispute in mediation.
Asking one party to step into the shoes of the other and see the dispute from their perspective.
Urging both parties to see things from the child’s perspective and to articulate what the child would want to see happen.
Jointly instructing a third-party expert to progress matters, such as an independent financial adviser or family therapist.

The mediator will also help the parties focus on wider benefits during negotiations. Focussing on other factors, not just the legal case, can add value to the options that are being considered.

Concluding mediation

Mediation can end in any of the following circumstances:

When the parties reach an agreement on all issues in dispute. The mediator will prepare documentation recording the parties’ agreement.
When agreement cannot be reached on some (or all) of the issues. If partial agreement has been reached the mediator will record these, together with any progress that the parties have made to narrow the issues in dispute, in the memorandum of understanding.
The parties decide to end or suspend mediation. This may happen if the parties decide to attempt reconciliation or consider it appropriate to attend counselling before mediation can progress any further. The parties may also decide to suspend mediation pending the occurrence of a specific event (for example, a child completing exams).
The mediator considers it inappropriate to continue mediation. The mediator may conclude the process if, during the course of the sessions, a power imbalance develops between the parties which cannot be corrected or if one party becomes abusive towards the mediator or the other party.

Steps to take after mediation

The mediator is responsible for producing documentation. If the mediation is successful in resolving or narrowing the issues in dispute, the mediator will produce a without prejudice memorandum of understanding recording the issues in dispute at the beginning of the mediation and summarising the agreement reached between the parties and any outstanding issues for resolution. If issues remain unresolved it can be helpful for any future adviser to have a record of the various options discussed in mediation. This also serves as a record of discussions for the parties.

If the dispute relates to the parties’ finances and financial disclosure has been produced and exchanged, the mediator will also update the open financial statement recording the documents produced during mediation and setting out a schedule of the parties’ assets. The parties can agree to use the open financial statement and any disclosure produced in mediation in future court proceedings. This will avoid duplicating the disclosure exercise and in turn reduce costs. Once the mediator has drafted the memorandum of understanding and open financial statement and has reviewed them with the parties, his role comes to an end.

Whether or not the parties have reached a consensus on all issues in dispute, they need to take independent legal advice in order to:

Implement any agreement reached. The parties’ respective lawyers will provide legal advice on the terms of the agreement reached and draft documentation for submission and approval by the court.
Determine whether legal proceedings will be required to resolve any outstanding issues.