Is there a ‘right’ family mediation model?
Mediation takes many different forms. Just look around the world!
As long as mediation honours its key principles and is ethical in its delivery it can take on many different shapes and sizes.
It will be for the mediator to decide. It is their process!
They are the mediation ‘Process Design Engineers’.
The eventual mediation process model will largely depend on:
- Primary objective(s)/Desired outcome(s) of the separating couple (see primary objective below) and
- The main challenges (practical, emotional,psychological) to achieving the primary objectives
When designing a family mediation process model the key test for the mediator and others is the extent to which ‘process design’ decisions and design implementation helps the separating couple to achieve their key priorities and primary objectives, in the most efficient and effective way.
This requires a dedicated, flexible solution and outcome focused approach and not a strict and rigid adherence to any particularly favoured or taught mediation model.
Financial mediation
Let’s take a standard financial family mediation as an example where the separating couple need to consider, among others, the following areas.
Future housing needs- Usually the primary need
Financial support (Maintenance)- Spouse and children
Pension division- Future financial resources
Family business
The primary objective
Most separating couple’s primary objective in a financial mediation is to reach a fair financial outcome in the most efficient and cost-effective way.
The challenges
Practical
This primary objective will influence and shape how the mediation process is designed to help the couple achieve their primary objective including deciding which family professionals will be needed and how to involve them (see below).
The mediation process model will need to be designed to ensure that any family professionals involved delivers the necessary support, at the right time and in the most efficient and cost-effective way to help and support the couple to achieve their primary objective.
Relational, communication
If the separated couple’s communication is poor with alleged patterns of control and bullying to contend with a key question to ask is how this couple can be best supported, in their particular circumstances, to have the kind of conversation mediation will require of them and they will require of each other, to be able to achieve their primary objective of reaching a fair financial outcome together in mediation, in the most efficient and cost effective way.
Taking into account the primary objective and these practical and emotional challenges let us go on to broadly consider what the mediation process model might look like, which professionals might need to be involved and how it all might work.
The tendency can be for mediators to fit the mediation challenge(s) facing them into a process or way of working they are most familiar with when in fact most mediations require a flexible approach and a degree of ‘process engineering’, designing the process around the challenges in order to help the couple achieve their objectives.
Mediation ‘Teaming’
I call this flexible mediation design process, ‘Mediation Teaming’ in which the defined objectives and desired outcomes shape and influence the design of the mediation process model and professional team.
It is and has never been the case that one mediation model fits all.
Among many other things, this approach involves discussing, considering and agreeing with the clients at an early stage of the process.
- How the process can be designed and managed to help the couple manage difficult conversations so that they can achieve their primary objective.
For example, the process can take place online and in separate online spaces.
- Which professionals are likely to be needed and how the mediation process can be designed to ensure that they are involved in the most efficient and cost-effective way.
Careful consideration may need to be given to creating and designing a mediation agreement fit for this purpose setting out, for example, whether ‘private meetings’ are going to be permitted, akin to the civil commercial model, or not.
As a Commercial and Family mediator, former family solicitor and Divorce Coach I have been using this kind of approach for over 10 years. It has taught me many things but above all to be wary of rigidity in my thinking and approach when it comes to working with the ‘mediation process’.
Careful thought also needs to be given to subjects such as confidentiality and communication protocols covering the potential sharing of information especially between financial professionals, if and when required in order to create a more joined up approach.
These are just a few of the many process design questions to consider.
There will be advantages and disadvantages to various process models and approaches for the mediator to consider and discuss with the clients and professionals.
The Mediation Team
These ‘support’ professionals might include the following in a variety of roles:
Financial neutrals
Property valuers
Solicitors in support of mediation
It will be important for each professional to be very clear about their role and responsibility in this mediation team model.
Some professionals will assist the couple as ‘Neutrals’ and others may assist each person as their representatives or consultant/coach.
For example, the financial neutral may assist the couple with obtaining a pension report from the pension expert
The pension expert may be a suitably qualified financial adviser or Actuary.
Either or both clients might benefit from working with a divorce coach alongside the mediation process, supporting them with their approach and communication in mediation, among other things.
Solicitors may be involved in a ‘supporting capacity’ working with their clients at each stage of the mediation process, in a variety of ways (both in and outside the mediation sessions).
A ‘Neutral’ or ‘Shadow’ accountant may be needed for a number of reasons relating to business liquidity and tax, for example.
And the list of things to think about goes on.
These are just some of the important things to consider at an early stage as the mediation process is created and designed to meet the primary objectives and challenges facing the mediator and separating couple.
The mediator will be at the heart of putting together this team and facilitating an effective and efficient mediation team model for the couple they are working with and around their primary objective(s).
Step by step
One helpful tip for any mediator is to deconstruct the mediation process into defined stages and agree the main objectives, responsibilities and roles for each stage, what will be required, which professionals will be required and for what purpose and so on.
These stages might include:
Engagement
Assessment
Financial disclosure
Instructing experts
Exploring options
Reaching proposals
Implementing proposals
In a ‘perfect world’, when couples separate, they will need easy access to the right family specialist for the right tasks at the right stage in the mediation process, who will guide and support them, starting with the mediator (neutral facilitator and guide).
In an ideal world the separating couple would all be working from one primary source of information and guidance but that is a topic for another article.
A key question to ask at every step of the way is:
Will the decision and action being considered by the mediator, financial professional or couple ultimately help the separating couple to achieve their desired outcome of achieving a fair financial outcome, in the most efficient and cost-effective way.
The mediation process design is key to achieving this.
John Hind LLB.FMCA.CMC reg
Mediator. Solicitor (retr’d). Divorce coach. Trainer
Founding Director, Compass Resolution Ltd
Author, The Divorce Manual