1. The pre-mediation stage
2. The financial disclosure stage
3. Preparing clients to explore their financial options in mediation
4. The implementation of your financial agreement

1:40 - 4:39 Q - What are the main advantages and disadvantages of seeking advice from a solicitor before seeing a mediator, to explore whether mediation is suitable?

A - Solicitors can give clients reassurance, support and confidence that they can get through the mediation process as well as help their clients decide whether mediation is suitable. They can also help their clients explore other options such as the solicitor collaborative approach, arbitration or court, where for example there may be a need for an urgent court application. In most cases, mediation will be the most suitable way forward where the mediator is an experienced mediator

4:40 -5:39 Q - In your view who might be the best person to assess the client for suitability for mediation?

A - This depends on the solicitor or mediator because some solicitors may also mediators...

5:40 - 9:00 Q - What are the pitfalls of seeing a solicitor first?

There may be some solicitors who are not supportive of mediation and may persuade their client to look at court proceedings when this may not be appropriate. Solicitor advice given at the first meeting can have the effect of making a client rather positional before all the facts are known so that they then go into mediation with rather fixed/rigid views which can make it more difficult for the mediator. There can be a real tendency, especially to start with, for minds to become polarised and rigid. It is important for clients to leave their first meetings with the solicitor and/or mediators understanding the full range of process options available to them, with a recommendation about the option(s) which best suit them and their circumstances. It is best to keep an open mind at all times.

2:10 - 3:39 Q - What is meant by relevant and proportionate financial disclosure?

The extent of disclosure may for example depend on the level of trust and how much the couple already know about each others’ financial circumstances. The solicitors will also need to be satisfied... This could simply be by way of spreadsheets or a more standard format

3:40 - 5:19 Q - What is the standard format for financial disclosure?There are a number of situations where the Hybrid model might be beneficial

A - Often solicitors use a Form E... which is a fairly structure way of setting out info... Mediators often use a shortened financial form removing the more positional statements found at the end of the Form E

5:20 - 5:49 - We all have to be constantly alert and careful not to polarise mindsets and approaches…. doing everything we can to facilitate an open constructive mindset and approach

5:50 - 8:19 Q - So, what are the advantages and disadvantages of using a solicitor to assist with financial disclosure?

8:20 - 9:00 A - Having a helpful solicitor can be an essential part of the mediation process... they can support the mediation process... ensuring that the correct info is provided and that the mediation session is not wasted... explaining why the info may be needed and whether other financial expert evidence is needed, such as business valuations and how to obtain this expert evidence.

First, is the solicitor and client confident that there has been sufficient relevant and proportionate financial info, before going on to explore financial options
Secondly, does the mediation client fully understand the information that has been provided...
Does the mediation client need help from a pension actuary, a property valuer, financial adviser...

2:55 - 3:19 Q - How do you approach supporting your client when they come to you with a range of options which they are exploring in mediation?

3:20 - 5:40 A - It is important for the solicitor and clients to keep an open mind, looking at a ful range of options which not only meet their client’s needs but the needs of the whole family and particularly the needs of the children and be open to compromise, give and take... an holistic view
04.20 As a solicitor, I also ask myself how might my client’s former partner’s solicitor be looking at this….keeping a rounded and practical view
04.40 It is important for clients to remember that they cannot bind themselves in mediation. They need to feel free to test ideas and explore options without feeling committed until both clients wish to.
05.40 The mediator helps their clients to construct financial outcomes which include as many of each person’s important priorities and needs as possible, which may require giving something to each other in return for receiving something important to them. The solicitor can help their clients to identify their priorities and those things that are less important and support them to focus on these things in mediation.

02.20 It is important for the mediator to ensure that their clients work within the shadow of the law and that any mediated outcome reached is within the parameters of a likely court outcome, which can be quite broad.

3:00 - 3:30 Q - What reassurance do you give your clients, as a solicitor, about your costs?

3:30 - 8:50 A - One mediation strategy is not to have all your meetings jointly. You would definitely want to separate them…. And allow more time… smaller steps…respect their views…learn to work with their views…slowly introduce different perspectives... Nowadays most family solicitors are specialists rather than pure litigators and adhere to a proper Code of Conduct which respects settlements, listening to clients, trying to avoid hostility whenever possible.
I am much more optimistic than I was a few years ago that solicitors will not try to undermine the mediation agreement but will look at it carefully in their clients best interests in mind, taking an holistic, practical view, as a safety net for their client, to ensure that their client has thought about important aspects and that it will work for their client.
I will not look to shoot unnecessary holes in that agreement but at the same time I have a duty of care to my client to make sure that they understand fully what they are entering into and that it will become legally enforceable
05.40 It is important to remain curious, asking the client about their thinking, how they arrived at their decision, why it is important to them etc, perhaps suggesting that they might want to think about the impact of their views from different perspectives, if they have not already done so.
06.15 A detailed mediated memorandum of understanding setting out the outcome ought to show how the agreement was arrived at which will help the solicitor enormously in their role of ensuring that their clients are entering into the agreement, fully understanding every aspect of it.
06.40 A plea to all mediator out there… it important to explain in the mediated outcome summaries how decisions were arrived at by, for example, setting out the options discussed and explored, the information taken into account, the priorities explored, setting out how their clients navigated their way to the outcome. It ought to tell a story, to some extent.
07.20 And this, ultimately saves time and money for the client, if a mediated outcome summary is prepared carefully and fully, who would otherwise have to try to explain everything to their solicitor
08.25 It is so important, at all times, for clients, mediators and solicitors, to keep an open mind, be curious, explore all options and possibilities (resisting the tendency towards fixed and rigid views and positions) and for the lawyers and mediators to be working in mutual support of their clients