These notes arise from trainees’ Memoranda and Financial Summaries produced during Resolution Family Mediation 8 day Foundation courses. They have been prepared to assist you in the preparation of your mediation documentation.

Memoranda (Outcome statements for mediations)

Use the formal introductory paragraphs in the Best practice Guide.
Refer to the Code Which one? FMC, Resolution? Both? in introductory paragraphsregarding confidentiality and privilege.
Refer to the number and date of mediation sessions in the introductory paragraphs.
Keep the background paragraph factual and simple and avoid potentially contentious information or information that would be more appropriately included in the financial summary or other more relevant paragraphs in the Memorandum (see below) .Include information such as names, dobs, age, occupations, date of marriage, date of cohab, date of separation, any divorce proceedings, DN,DA, childrens’ names, dobs, where living (although even this can sometimes be contentious so, beware), any other non contentious useful background info.
Summarise matters the couple wished to address in mediation referring to them as matters rather than issues and consider taking these from the mediation flip chart agenda since this was prepared with the clients.
Under each separate matter/subject paragraph the following order;
Where necessary, summarise the background info/facts relevant to the particular heading ie Housing, Children(use the children’s names rather than referring to them as children) etc
Where necessary refer to any information provided by the mediator
Where necessary refer to info and docs provided by A and B relevant to the matters and options in discussion ie “A and B produced …. upon which they based their discussions”
Where necessary summarise the options discussed and considered. Try toavoid; “he said, she said” ie they discussed, A and B explored etc
Do not use the word “agreed”. Summarise proposals reached or not reached;“ A and B proposed” or “ it was proposed” (We want the decisions and where necessary the reason for them.)
Although writing in the third person, consider personalising the Memo using balanced language in the first person such as;A and B acknowledged that….
A and B calculated that
A indicated/express the view/ identified/…Having discussed the following matters for discussion……A and B identified/explored the following options regarding their future housing … (Not sure we need or should encourage to much of this)Having considered X, Y and Z ie information/docs and the options referred to above they reached the following proposals, proposing that
A pay to B

The house to be sold and X pounds paid to B

Billy to spend the following time with A

Rather than” A and B agreed that A will pay to B..” write, “A and B proposed that A pay to B the sum of…” Indeed, perhaps try to avoid the word “will” altogether in your paperwork because it carries with it a sense of compulsion and is often linked to the word “agree” which carries with it contractual connotations and an element of risk that a contract might be construed. These are ‘propositions’ for settlement, not contracts/agreements.
Another word to use with some caution is “felt” ie” A felt that B was..”, perhaps stating instead that,” A explained that she felt” or better still, avoid references to individual expressions of emotion unless there is a good reason for acknowledging these in the Memo, perhaps simply indicating that,” having had discussions in which A and B were both able to express their view about X, Y, or Z A and B reached the following proposals OR A and B were unable to reach any proposals and were recommended to seek legal advice…..”
Also, avoid stating that “A believed” preferring to write that “ A indicated that …” or “expressed the belief that”
At various points it might be worth emphasising the Mediator’s recommendations. For example when referring to pensions/endowments discussed it might be worth mentioning that “ the mediator recommended to A and B that they each seek independent financial advice” and for tax matters “the mediator recommended to A and B that they each seek independent accountancy advice” and for tax matters. The same applies to legal advice, where the mediator has indeed recommended in the mediation that A and B seek legal advice. Sometimes, it might be useful to discuss in mediation and set out in any interim paperwork specific questions A and B propose to ask their solicitors between sessions.

If the mediator provides helpful information it is worth mentioning this under the relevant paragraph to remind A and B and to inform their solicitors if and when they read the paperwork (and perhaps the Judge, if he/she gets to see it)

OPEN FINANCIAL SUMMARY

Begin with the usual paragraphs in accordance with the Best Practice Guide
Copy and paste the background paragraph from the Memo (see above) and keep the financial summary simple and clear in tabular format with non-­‐contentious explanatory notes at the end. Consider using a column next to the item column setting out any ‘net calculations’
The summary should include a detailed schedule of documents provided. Consider listing each person’s supporting documents in two columns side by side at the end of the documents before the signatures.
Notes

Remember to have ‘one eye’ on who else might read these documents i.e. clients, solicitors and of course, Judges where privilege is agreed to be waived. Make sure that they are clear and comprehensive for all.
With this in mind, it is sometimes useful especially with interim Memos to set out some questions that might need addressing by the clients with their solicitors (i.e. BATNAs and WATNAs) along with tasks that need to be carried out between sessions to ensure the couple are prepared for the next session and feel that progress is being made.These points are of course by no means exhaustive…