For many, the end of a marriage or relationship combines emotional unrest and significant financial uncertainty. The disruption can undermine the best laid financial and tax plans.
The legal processes to end a marriage and the administrative steps to ascertain a family's assets before embarking upon planning for a separated family's future, can be viewed as an unwelcome distress purchase.
For so many couples, this is a once in a lifetime event. What route to take and navigating rocky terrain can be baffling. Their starting point may be their existing financial advisors seeking referrals to specialist family lawyers as a first step to navigate towards the new financial future to begin to decide who can help support.
Yet family lawyers do not only offer legal advice and guidance but are a good starting point to consider other process options to include mediation, arbitration or collaborative law. Mediation, resolving issues through discussion outside of the courts, is an option which was 30 years ago considered 'alternative' but is now mainstream.
Prior to anyone accessing the family court on issues of division of finances or future arrangements for children, it is necessary to consider if litigation is really necessary and to explore the benefits and challenges of process options. However, at present, mediation remains voluntary and so if one party does not wish to engage in it, it does not start. Mediation aims to empower parties to come to their own solutions, bolstering communication between the parties and enabling realistic decisions with a future focus.
So why are more and more couples choosing this route?
Mediation often appeals to those who wish to have some autonomy over the decision making on their family's finances. Rather than handing matters over to a judge who will impose an outcome, in mediation, the mediator listens to both parties; gathers the necessary information to identify some solutions; explores those with the parties and reality tests those options. If a proposal is forthcoming, it can be written up in a memorandum of understanding and can be then drawn up into a draft court order to be approved in writing by a judge. No court attendance is therefore necessary.
Mediation is by no means a soft option. To achieve financial outcomes, mediation still includes comprehensive financial disclosure of both parties' assets liabilities, income and outgoings. There is however scope to simplify, or tailor make the disclosure process to enable parties to understand "what" there is before moving into working out "how" it can be fairly divided.
The standard Form E financial disclosure form can be used or modified. Mediation is particularly effective in raising questions about finances which may enable parties to explain their worries or misunderstandings. Hearing the other's concerns and having the opportunity to perhaps provide more information can be reassuring or identify a sticking point which may need professional input.
If using a family lawyer mediator, whilst they are unable to advise either party, they are well placed to describe the range of possible outcomes if the matter were to be looked at by a judge. The mediator has permission to set the scene and explain timing, costs, challenges, and all such explanations can be heard by both parties at the same time. If there is confusion or misunderstanding – or simply grief and anger at the impact of a fractured personal relationship – the mediator can manage the combination of emotion and problem solving. Mediation is not counselling or an attempt to enable the parties to reconcile.
Parties do have to work quite hard, but the mediator holds the ring to ensure everybody communicates calmy and constructively. Domestic abuse screening before the process starts reduces the concern of a power imbalance and shuttle mediation – which sees couples mediate without being in the same room – can be used effectively to ensure that discussions are safe.
Mediation is private. Parties usually attend on their own without lawyers. No press or members of the public attend, unlike the move to transparency in the court system.
Hybrid mediation, where parties have their lawyers present throughout or at particular parts of the process, is also possible. It can ensure parties feel supported and can take independent advice as they go along.
Mediation can also be bolstered by expert input. This can include IFA's and accountants, tax specialists and valuers who can feed into mediation to produce reports or attend to facilitate explaining issues or exploring proposals.
At present, the court system is overloaded, with often lengthy delays which can make matters even more stressful for separating couples, and it can be complex. Courts address issues of finances and children in separate parallel sets of proceedings. It is possible to be arguing over where children live in one court and dividing the home and pensions and assets in another court, each proceeding with a different timetable.
Mediation has the great advantage of being flexible and episodic. It is a series of sessions timed around the gathering of necessary data and documents and can speed up or slow down flexing with the parties' needs, budgets and availability. All issues can be addressed together, and it can be reused quickly if adjustments need to be made. In times of austerity, it is particularly well suited to addressing the need to vary or capitalising existing spousal maintenance orders or single issues.
With the family court system struggling, it is no surprise there are strong calls for mandatory mediation to be introduced, though this may in fact undermine the key element of mediation – it empowers parties to come to their own solutions, bolstering communication and enabling realistic decisions with a future focus.
Source: IFA Magazine by Brandon Russell | Dec 6, 2023
https://ifamagazine.com/mediation-legal-expert-outlines-a-serious-route-to-consider-for-separating-couples/
