Category Archives: Mediation

Mediate not Litigate

And that is the rallying cry of Mr Justice Holman in the case of Ekaterina and Richard Fields

The couple have been married about 10 years, have two children, and at the start of the case, the Judge has urged them to try and resolve their financial issues without the intervention of the court.  He explained that court hearings can be “awful” and described them as being like a boxing match.  The couple’s fees are expected to be in excess of £1 million by the end of the trial, and the Judge asked them to consider what else they could have spent the money on.

As a mediator and a solicitor, I am aware that some cases are suitable for mediation, and others are not.  For most however, it’s a question of timing.  At the start of the separation, feelings are very raw, with clients ranging from angry to distraught.  This is usually when clients are told about the benefits of mediation.  This is usually when most people are not ready to try and work with their ex – there is likely to have been a massive breach of trust, and by embarking on the mediation process, clients have to trust their ex to make the process work.

By the time the court system kicks in, many clients are weary of the process, are fed up of paying legal fees, when they don’t feel like they have got very far, and are more likely to be receptive of mediation and the benefits – it’s quicker and cheaper, and far less stressful, and clients can dictate the pace (provided they agree).

What is the answer?  Our system is built on the basis of litigation.  There have been various suggestions over the years, as to how to improve our divorce system – by introducing no fault divorces, and by having a “cooling off” period.  The difficulty is that our system is a one size fits all and as a practitioner of over 20 years, no two divorces are the same.

Mediation needs to be promoted, not as an alternative to litigation, but the main option.  It is only when mediation is at the forefront that people will be more accepting of the system.

Some clients think that having a judge make a decision is somehow easier than making a difficult decision for themselves.  It is only when they have been in litigation for a few months do they realise that that isn’t the case at all.

Cases involving Children – Court, or not Court?


Three business people are meeting

I have just read an interesting article by a Social Worker called Gar Direnfeld from Ontario Canada, and I was struck by the similarities between the English Judicial system and the Canadian one.

It made me think about what people need to know before they embark on Court proceedings, which are sometimes seen as a panacea to cure all ills.   So here are my top observations that will help enable people to decide whether court proceedings are the right forum for their dispute:-

1.  The Court is not there to apportion blame – they will not adjudicate one person right and one person wrong.  Whilst they may not condone behaviour they will not mete out punishment.

2. The Court is not there to be on anyone’s side, other than the child, or children that they are being asked to make decisions about.

3. The Court will make a determination, and it is, in most private law disputes, likely to be somewhere in the middle of the representations by the two sides.  This means that neither of you will be particularly happy about the outcome.

4.  If there is a section 7 report, prepared by CAFCASS, or Social Services, the Court is likely to follow it.  If they do not, they have to have very good reasons to depart from it.

5.  If one side is perceived to have “won”, the other “lost”, the arrangements that the Court have imposed are less likely to be adhered to, and often can make the situation worse.

What alternatives to Court are available

1. Mediation – where both of you discuss the arrangements with a neutral third party, and try and come to a mutual decision.

2. Collaborative process – where both of you instruct lawyers who are collaboratively trained and you all meet together to try and come to a mutual decision

3. Lawyer led negotiations – where you meet with your solicitor, and discuss proposals, which are then put in writing, or discussed at a meeting that all of you attend.

Sometimes these options are not possible – where the welfare of children are at risk, or where one side refuses to engage in the process at all.  But where these options are available, whilst the decisions you reach will often be difficult – compromise is key – they are likely to have longevity as the decisions have been made by both of you, and not imposed by a Court.



meeting room table with chairs around

This week is Alternative Dispute Resolution week.  This means that Family Solicitors up and down the country will be trying to promote alternative ways of resolving disputes, and trying to avoid court.

As a mediator, solicitor and collaborative lawyer, I have heard all the arguments for and against mediation, collaborative law, and round table meetings.  At the end of the day, I think that for best outcomes, both participants do need to want to try and resolve their dispute.  I often say that most disputes are suitable for mediation, but it may not be the right time for mediation.

It is difficult sometimes to sell mediation to a client.  This is because it is voluntary – their ex can not be made to attend, and can not be made to discuss problems if they do not want to.  In the recent case of Mann v Mann [2014] EWHC 537 Judge Mostyn was faced with a wife’s application to enforce an order to pay her money by the husband.  The husband argued that the wife had agreed to attend mediation first.  Judge Mostyn  confirmed that he could not force a party to go to mediation.  However, he adjourned the case to enable mediation to take place.

So, it’s clear that Judges think mediation is a good idea, and the Government thinks mediation is a good idea.  Why not clients?  There are some really good reasons to mediate – mediation can resolve disputes much more efficiently and more quickly than a court can, and it costs a fraction of the price.

I think that part of the problem is that when couples become locked in conflict, they stop communicating, and to start again is very difficult.  It suggests that somehow, they have let the other person off the hook, or they have forgiven them for behaviour that upset and hurt them.  Mediation means that clients have, to a large extent, got to trust each other, or trust the process.  That is a difficult thing to do.

For some, it may be too early to be able to look at the future – clients do need to be in a place emotionally where they can look forward, not look back.  Quite often in mediation, I find that couples work really hard to come to some sensible arrangements, and then get stuck on one seemingly small point.  This is because reaching a consensus effectively terminates the relationship, and people do find it hard to let go.

That said, please give consideration to mediation.  It means that both of you makes the decision, rather than leaving it to a judge.  It also enables you to be able to communicate more effectively in the future.  It takes less time, and it costs less money.  It is a giant leap of faith for some, but take the leap – it may work out!!

The Changing Tide


child with milk caught in the middle isolated on white


I have recently read a series of articles, which I think are all related to the Government’s legal aid cuts in family law.  The first was how the Government is announcing a £2 million support package for separating couples, the second was how there has been a decrease in cases concerning children as a result of separation or divorce by 25% in September, and the third was about the address made by Simon Hughes that more people are resolving disputes outside the Courts.

As a mediator, it is great to see that the Government are really encouraging mediation, and are really trying to promote the positive benefits of achieving an out of court settlement, in relation to children and/or finances.  As a mediator, there are few cases that are unsuitable for mediation, and this is why the Government feel that everyone should be using it.  The reality is that for some people, it is not the right time.  What the Government have failed to take into consideration is that the breakup of a relationship is really emotional.  People are quite often in different places emotionally, and this makes sitting in a room with the other person really hard.  Quite often, people feel angry or bitter, and this prevents them from being able to make rational and good decisions about their future, and their children’s future.  Sometimes both people feel angry or bitter towards the other, and are simply unable to make decisions together.  Quite often it can take a long time for parents or ex partners to get over a break up.  It is for these people that the Government’s policy regarding legal aid has had the biggest impact.

Mediation is great for some, but is not a panacea that cures all ills, and the Court system is still vital for some families.  It is no surprise that there has been a 25% reduction in September in respect of Children Act applications for a Child Arrangements Order (contact and residence as was).  As a solicitor, I see a lot of clients for the first time, and they are simply not in a position to pay for solicitors to represent them through proceedings.  A lot, I know, will walk away, without seeing their children.  This has a massively damaging impact on the children.

I am pleased that the Government is now using some of the money that it has saved with the legal aid cuts, on supporting separating couples.  I am really proud that in Huddersfield, the local firms all support the Legal Support Service, where a “duty” solicitor speaks to people who are acting without a solicitor and who have a case in Court at that time, to offer them some guidance on how to present their case and what to expect.  The Government are piloting that at certain court centres, with the aim of rolling it out across the country.  The work appears to be done by the Personal Support Unit, LawWorks and Law for Life.  However, whilst this may alleviate the burden on Judges, it still doesn’t go far enough in helping clients to make sensible decisions about their future.  I know that Resolution, the Family Law organisation, was trying to get the Government to fund solicitors offering one advice session, so that at least separating couples were getting some legal advice from the outset.

The other positive thing is that the Government is funding a CAFCASS-run Helpline, for parents wo have been unable to resolve disputes, and want to avoid court battles over their children.   However, it takes two to tango.  If one parent is not in a position to negotiate, or try and make arrangements, the Courts will still be needed to help to sort the situation out.

Sadly, I fear that due to the Government’s policy, and lack of understanding about separation, many children will go without seeing a parent, and many couples will find that they have madeunsuitable agreements about financial issues because they can not afford legal advice.