In my experience as a mediator, I often see clients struggling when they get to the point in their mediation process where we are exploring their financial options and possible outcomes. I sense that, often (not always) they have not been fully prepared for what these sessions might entail despite the best efforts and intentions of both the mediator and their solicitor. Mediation works best when clients who need the support of their legal advisors have that advice alongside the process. So, here is my next blog which I hope will help clients and solicitors alike.
I find that solicitors are great at practically supporting their clients with completing Form E’s, reviewing the financial information provided in mediation but often don’t want to intervene too much when it comes to talking about financial negotiations.
Solicitors tend to not want to disrupt the process as clients often seek advice at a later stage in the process. I hear clients say ‘my solicitor thought we were doing a great job and didn’t want to affect that.’ Often, as a result the solicitor has not fully prepared the clients for what to expect and they then struggle in meetings where they are being asked to consider their financial proposals. This can leave them feeling insecure, lacking confidence, scared, upset and can also lead to mediation breaking down because their ability to think straight is overtaken by fear. Working as a team to support mediation can make all the difference.
You can be assured I will give legal information, ask questions to help them think carefully and slowly, give tasks to get their thinking brain taking over from the emotional side of the brain, take things at a pace to suit them, scheduling plenty of breaks, never use legal jargon, take time to explain things and all of their options. Solicitors have an important role to support the process and this is the time for thorough help and guidance, rather than a light touch.
My top tips to help your clients get the most of mediation when they reach the stage of financial negotiations:-
- Please keep in touch with your clients as they go through the mediation process. I will often guide clients when is the time to seek legal advice and what advice would be helpful. If supported throughout the process, clients will be practically ready when we reach the stage of financial negotiations.
- Please remember that if their financial disclosure does not look like what it would after a meticulous court or solicitor process this does not mean that something has been missed. It means the clients have made a decision, after careful consideration and discussion in mediation as to what financial information they want to disclose and we have considered what will help them in their negotiations and what may not. Another bank statement for an account which has £1 in it and has been dormant for years is unlikely to make any difference but very likely to cause upset and extra stress for the person who is being asked to provide that additional income.
- Please give the clients an understanding of what they will experience in this session. The best way to do this authentically is to join a mediator and observe a session where the mediator is working with clients to explore their financial options. All accredited mediators are used to being observed and we welcome the opportunity for solicitors to be present to fully understand how the process works. It helps to see and understand that the mediator is working with two people, each with their own views as to what feels fair, to find a mutually acceptable outcome.
- The mediator will be encouraging the clients to lead their own discussions and make suggestions. Please help them by preparing them for what to expect. Work through various scenarios and calculations with them so they can see how calculations are made. Encourage lateral thinking where they can explore as many options as possible and not just the one which is their preferred one.
- Please help your clients with flexible thinking. It is unlikely in mediation we will only be considering one proposal. We will be looking at all options. If clients are only prepared to discuss one option, negotiations often fail or they become stuck, unable to think about alternatives. Attending with a plan a, plan b and even a plan c is always helpful.
- Please consider with your client where they may negotiate. Any financial negotiation will involve compromise. Clients need to be prepared for compromise. Where are the potential areas for compromise? How far are they willing to compromise? How can they feel safe compromising in mediation? Safety comes with being informed and understanding where those areas are. It is also helpful to understand what the other person really wants to achieve to consider a compromise which the other person is likely to find helpful.
- Consider practically with your client how they find negotiating. Work through their family financial pot with them. Do they understand their pot? Can they be helped by using real terms rather than legal jargon.
- Do they need any additional support? Will they need more breaks to consider their thoughts? Will they find it easier to break any financial proposals into smaller, more manageable areas of discussion? Would they find it easier to write things down? I will always ask them at the beginning and as the session progresses how they would like me to manage their mediation so it helps for clients to be prepared for me to ask.
- Manage their expectations – would you as a solicitor expect to send a proposal and for that proposal to be immediately accepted? In my experience this is rare so clients need to know this. They may need several sessions discussing financial options and they will definitely need to be prepared to consider lots of different outcomes.
- Please give all perspectives and not just theirs. In mediation, we are working collaboratively. This means that clients are working hard to find an outcome which works for them individually and as a separated family unit moving forward. Please consider how everyone is feeling and what the priorities are. Please think about what you might recommend or advise if you were acting for the other person. Please bring the perspective of any child into that consideration. If a child is about to embark on GCSEs and is anxious and still coming to terms with the family separation, is it sensible or necessary to suggest an immediate sale?
- Please think about how the other person may approach their financial negotiation so that it is not a shock if a client hears that the other person is seeking a share of their pension, for example. Please give realistic expectations and normalise differences in both interpreting the law to their circumstances and possible outcomes. Please remember that mediation often involves discussions on what feels morally right, reflects their contributions made over the years as well as the legal boundaries.
- Finally, please understand that you will not need to live with the clients choice of financial outcome. It may not immediately look like an ideal solution or it may not be the best possible outcome they might achieve if you were to litigate on their behalf but usually it is the best possible joint outcome that can be achieved after a lot of hard work and effort by your client. Clients are always welcome to return to mediation if, on reflection, anything else could be discussed but ultimately if they are content, the mediator has properly reality tested their proposals with the benefit of financial disclosure, this is their financial outcome not yours.
And thank you most importantly for providing valuable support and advice to your clients to help them get the most out of the mediation process. Although I can never talk to you about any aspect of your clients mediation as their process is confidential, I’m always happy to talk through the process and to answer any general questions or for you to observe the work I do as that really is the best way to prepare your clients for what they should expect.
