“An important key to success is self-confidence. An important key to self-confidence is preparation” – Arthur Ash
Is it important for you to see a solicitor BEFORE you see a mediator?
We are often asked this question and the answer is: It depends.
In this section we look at some reasons why you might want or need to see a solicitor before a mediator and some reasons why it might, in fact, be a hindrance, to see a solicitor before a mediator.
We also consider the type and training of the solicitor you might need to support you in mediation.
As mediators, our aim is and always will be to help you think about your options based on reliable information and facilitate the gathering of the right professional team around you so that you are able to make the right choices for you and your family during these difficult and often confusing times.
- Is it a good idea to see a solicitor BEFORE your 1on1 confidential pre-mediation meeting (MIAM) with the mediator?
Many family mediators are also former solicitors (or practicing solicitors) of many years experience and therefore able and experienced enough to consider this question from the client’s, mediator’s and solicitor’s perspectives (a wide range of process options)
All we ask at this stage is that you read this chapter and carefully consider the benefits of seeing a solicitor before a mediator.
We certainly recognise the value, in many cases, of doing so if it (and here is the point) helps you engage with the mediator and mediation process, in a more confident, relaxed and open- minded way, feeling that you have a solicitor supporting you ‘in the wings’, as it were although if you decide to see a solicitor first there are things to be aware of and consider (see below).
Also, there may well also be important and urgent practical reasons why you might need to see a solicitor first because, for example;
- you need to apply for an injunction to prohibit the removal of assets from the UK jurisdiction or the spending or transfer of assets, outside the jurisdiction (You may need a solicitor to secure an Undertaking from your former partner, not to do these things)
- you need to protect you interest in a property which is sole owned by your former partner in which case your solicitor may advise you to register a Matrimonial Homes Notice
- you need your solicitor to help you decide whether to Sever the Joint Tenancy
This way, you protect the ‘asset pot’ so that you can both go into mediation to decide together how these assets are to be divided. These are good examples of where the solicitor and mediator can work together to support a fair, efficient and cost effective process for you both. We will come back to these reasons later.
From an emotional and practical point of view, our experience is that seeing a solicitor very early on, before seeing the mediator may give you the confidence but has the potential of sending the ‘wrong signal’ to your former partner, resulting in them rushing off to seek their own legal advice, afraid that they might be disadvantaged if they don’t, quickly polarising everyone’s approach and thinking, leading to a flurry of letters being exchanged between solicitors, and risking a rather binary mindset and approach to addressing and solving the challenges facing you both when things are already tense.
Putting ‘the signal’ to one side for one moment, we often wonder about the extent of the practical help and support a solicitor is able to provide at this early stage, when there has often been very little financial disclosure and each solicitor only hears one side of ‘the story’ whereas, of course, the mediator, sees and hears the ‘whole picture’ and is therefore able to build a ‘balanced picture’ of the practical, emotional and psychological challenges lying ahead for the separated couple, assessing the situation for mediation suitability, preparing and supporting each client for a collective solution focused approach, minimising the destructive tendency towards binary, polarising and divisive thinking.
This said, we definitely see and have experienced of the benefit of people meeting with a solicitor early on, in order to build their confidence and capacity to make the decision to see a mediator, and here is the main point, especially where the solicitor fully understands and supports the mediation process and encourages their client to attend the pre-mediation meeting with the mediator, with an open mind, to find out more about mediation and how it might be able to help them and their former partner.
It is here that we return to important point, mentioned in the previous section, of using the right family professional, in the right role, at the right time, during the separation process whether a mediator, a solicitor, a coach, an accountant and so on.
The mediator is, of course, the expert in mediation and the expert in assessing, with each person, whether mediation is suitable for them and their circumstances and whether they are emotionally and psychologically equipped and ready for mediation.
The solicitor is not trained for this purpose or, indeed, in this role, when they first see their client. The solicitor is the legal representative and the legal expert, expert in the law.
Even if your solicitor is a trained mediator or collaboratively trained solicitor, only the mediator, as the neutral facilitator, is able to speak to both members of the separating couple (assessing both narratives and relationship dynamics and patterns), assessing them and the situation for mediation suitability.
Having said this and as we wrote earlier in this section, there may of course be important things that have to be dealt with very early on which only a solicitor is in a position to help with, such as injunctions to prevent money and assets being spent or hidden (where there is a ‘real’ risk of this happening) or the registering a Matrimonial Homes Notice (to protect one person’s property rights where property is in one name only) or the severing of a Joint Tenancy.
These are all matters a mediator can provide information about but only a solicitor can advise about the best course of action and directly support their client to take action or take action on their behalf.
Apart from these ‘emergency type’ of situations, we find it hard to be persuaded of the benefits of seeing a solicitor before seeing a mediator and if the mediator believes that the circumstances require urgent advice and support from a solicitor they should and would be the first to recommend to their client that they see a solicitor as soon as possible.
- Let’s now look at whether you should consider seeing a solicitor after your MIAM but BEFORE your first mediation session.
What about the benefits of seeing a solicitor AFTER you have both attended a pre-mediation meeting with the mediator, often called a MIAM but BEFORE the first joint mediation session.
This can rather depend on how each mediator works.
For example, if it is the mediator’s practice to ask each person to complete a financial disclosure booklet (also known as a Form E), before the first joint session, you might want to seek some help and reassurance from a solicitor that you are doing this correctly, before you bring it with you into mediation. You might also want to enlist the help of an accountant or financial adviser as part of your ‘preparation support team’
It is for this reason that we have written the chapter- how to reach your own financial agreement– which broadly takes you through how to complete this form in order to save you time and the expense of seeing your solicitor, at this stage. There is also a series of short videos prepared by the Author, John Hind explaining how to do this in order to save you time and money.
Your approach and whether these videos are enough or whether, at this stage, you feel you need a solicitor (or Financial Expert in support) will to some extent depend on the financial complexity of your circumstances and your level of confidence and competence.
We cannot speak for other mediators and organisations, but, at this stage we simply ask clients ‘to do their best’ with their first attempt at completing their financial booklets and collecting their financial evidence, using this Manual and videos to support them, knowing that they will go through these forms together with their mediator, in some detail, during the first mediation, session creating a list of missing information and documentation that will need to be obtained as well as questions that may need answering before financial options can be explored.
We also recognise that this will be the first time most people have to do this so we do not ask for perfection.
Most people are also already often busy and experiencing challenging emotions connected with their separation, which we cover in our chapter and video- Are you thinking about mediation, so we really do not expect a fantastic result on the first attempt.
We hope that by stressing this point we reduce the pressure and burden people might be feeling about completing their financial forms, at this time.
It also means that to some extent people can relax, knowing that the mediator will go through their financial forms with them and their former partner during the first session, as the mediator constructs the first draft financial summary spreadsheet, which people can then take to their solicitors for their views, if they wish.
We cover all this in the chapter-how to reach your own financial agreements-5 stages
We recognise that for most people the first mediation session will be the first time they work together in mediation and they may be feeling uncomfortable for many reasons.
At the end of this financial mediation session, you are both likely to have agreed a list of information and documents to obtain and provide and an agreed timetable, within which to do it.
Have a look at the example mediation interim outcome summary (Memorandum) which you can find as part of the chapter how to reach your own financial agreements-5 stages , setting out among other things an example list of tasks arrived at during mediation.