Why Austin became a divorce mediator
Family Mediation: A fair and shared outcome for you, your former partner / spouse and the children.
Austin Chessell of Hanover Solicitors in Knightsbridge, London is a Family Solicitor and Family Mediator. After qualifying as a Family solicitor I soon realised that going to court is not always the best way to resolve a financial or children dispute and undertook a course in Family Mediation.
I have also for the past 5 years been a contact centre volunteer and have a lot of experience of seeing how the court contact orders operate in practice once they are made. A lot of the couples who use the contact centre seem to still get on despite living separate lives but cannot agree contact time arrangements themselves. Sometimes they are in disagreement over as little as 30 minutes and go to court rather than try and resolve the contact through mediation. I am keen to make people aware who are thinking of going to court to get a contact order to consider mediation first.
From the 6th April 2011 due to a new pre-action protocol, mediation will need to be attempted anyway before an application is made to court for children and financial matters where each party will be required to attend a Mediation Information Assessment Meeting (MIAM) unless there are exceptional circumstances. For the cases which do still go to court, a change in the rules will mean that a judge at every stage of the court hearings will need to decide if it is right to stop the proceedings and send the parties to attend Alternative Dispute Resolution. This new approach seems sensible.
I attended a training course with ADR Group a couple of weeks ago in London and am now able to carry out the MIAM assessment meetings. I have recently completed a mediation case where the issues were contact and residences have been agreed and this case is now likely to continue to resolve their financial issues. If there are children and financial issues there are usually between 2 – 6 sessions.
The media and the government has recently been highlighting that Family Mediation is quicker and cheaper than going to court which I agree with but what are the other practical benefits?
• Maintaining communication and continuing to co-operate as parents – If children are involved and are also young it is going to be necessary to still talk to your former spouse or partner for issues such as the start times and end times of contact with your child, contact time during the holidays and special occasions, school activities, medical treatments, future schooling and the way maintenance should be paid. The mediator is not there to provide solutions as these need to be determined by both of you but will listen to both of the parties and be flexible to discuss what would be best for all of the people concerned. In one mediation session I have been involved with it came to light that one of the parties claimed they had not been receiving maintenance but the other party had set up a standing order to the wrong account and after this was discovered during the session communication between the parties improved dramatically.
• Reducing hostility, bitterness and misunderstanding – Mediators are not allowed to give legal advice but if the parties are to divorce it can be agreed during the session what fact the Petitioner is going to use in the petition and what the particulars are to be used. In my role as a solicitor it is amazing at the amount of Petitions which are filed at court and then the Respondent asks for the petition to be amended after it has been issued which incurs a further court fee and the solicitor’s time for amending the petition. If what is used in the petition is agreed early on this can put relations on a better platform when moving on to discuss the financial settlement and / or children arrangements.
• Focusing on the children’s needs for parents to co-operate as much as possible – if both parties who are using mediation can’t reach a solution for one of the issues which involved the child e.g. future school being private or public they may agree for the mediator to see the child in a separate session. The child consultation enables the child to have a voice privately and confidentially to a mediator trained in Direct Children Consultation. In Court proceedings the Court can ask for a Cafcass Officer to produce a report on the child’s wishes but there is sometimes a long waiting time for the report to be produced. I also work with Massy Ellesmere at Family Mediation In Action which is a new Family Mediation Service covering West, Central and North London. She has a great skill of bringing out in the child consultation sessions what the children would like to happen and then passing this information back to the parents at the next session so that real progress can be made.
• Avoiding a sense of winners and losers by reaching an agreed solution which have some benefit for all concerned. Where a financial settlement is being agreed the mediator is there to be neutral and help the parties reach a balanced settlement. At the same time if there is a particular asset e.g. a pension which one party feels particularly attached to the mediator works with the parties in a creative way so that if one party is to retain their pension the other assets can be divided in a way whereby the other party will receive a greater share of another asset. For house contents which cannot be divided by agreement I usually ask for the parties to bring a proposed list and then the chattels can be divided in the following session. This often tends to be more cost effective than writing several letters through correspondence or having to return to court to decide on the division of items which can often outweigh the chattels value.
• Where Mediation does not work. Mediation is not appropriate for every situation and it would be wrong to force a mediation to happen if the signs are there that mediation would not be successful. Mediation is more than likely to break down at some point if this happens. For example where there is domestic violence, child protection issues, a power imbalance or where one party does not want to separate. All of these issues are screened for at the first session. Not every mediation will complete the process from the initial meeting to having an agreement drawn up as mediation is voluntary and either party can opt out at any stage.
Any agreement drawn up in mediation will not be binding but it can then be sent to a solicitor if this is what has been agreed. The agreement can then be drafted into a consent order which can then be filed at court which will provide both of the parties with more legal certainty.
I am also looking to set up a London Family Mediation Group for Family Mediators of all levels to meet several times a year to discuss their practices, marketing and topical family mediation issues. If you are a Family Mediator in London and would be interested in joining this group please get in touch.
Contact details: Hanover Solicitors, 14 Basil Street, Knightsbridge, London, SW3 1AJ