“The answers you get depend on the questions you ask” – Thomas Kuhn
“Success is where preparation and opportunity meet” – Bobby Unser
Solicitors who clearly understand the main purpose of their supportive role in the mediation process are better able to help their clients explore financial options in between mediation sessions, helping and supporting them to make their own decisions and reach their own agreements, when they return to mediation.
These solicitors also feel less inclined to take responsibility for the ‘direction of negotiations’, at each stage of the mediation process, preferring to play their part in preparing and supporting their clients to work together within the mediation process.
We recognise that some solicitors may feel the need to take responsibility in a process like mediation, in which they may not feel in control of the client’s decision making or believe that they are protecting their client or that they, the solicitors, have the right answers. Many of us have also been solicitors, in the past.
Solicitors can be hugely influential on their client’s thinking, approach and ultimately, decisions about whether to mediate or not, for good or for bad.
With this influence comes an equally important responsibility to properly support and prepare their clients to succeed in mediation, from a practical and psychological point of view.
When we refer to a ‘psychological point of view’ we do not mean that your solicitor needs to be a therapist or psychologist but rather by ensuring that you go into mediation fully informed, aware of your options and open to exploring others, they also ensure that you go into mediation feeling more confident and empowered to make decisions together, with your former partner.
So, what do we mean by ‘properly prepared’? What does this involve?
What does the solicitor need to be thinking about and careful about?
When a solicitor is advising their client, who has chosen mediation, there is a need to consider whether what they say and do for them hinders or, in fact, helps them go into mediation with an open, informed mindset and approach, ready to explore a full range of financial options, from their perspective and interests, as well as the other person’s perspective and interests, considering the separated family and children, as a whole.
Please have a look at our guide – a constructive solution focused dialogue exploring options which describes the kind of mediated approach we are referring to here.
This may be a tall order but one which many solicitors live up to but also one, which sadly, a few do not!
When you read this section we mainly want to make you aware of the kind of solicitor’s approach we believe is helpful if you decide to use mediation.
We believe that working together collaboratively with your former partner in mediation, to find solutions and outcomes acceptable to both of you, can be challenging at the best of times, so you need all the constructive help and support you can get from your solicitor.
So, having agreed a financial summary of all the figures, what next in mediation?
There will no doubt be things you want and hope for and things you are concerned about (Outcome Values/Needs). You began the process of identifying these when you completed your pre-mediation questionnaire for the mediator before the MIAM.
There may be difficult emotions you are trying to manage and, perhaps a degree of rigidity and hostility from your former partner to deal with. These are all the ingredients of a typical mediation.
We recommend that you read the chapter-preparing to communicate in mediation, or when it comes thinking about your emotional and psychological readiness for mediation.
That said, what we are referring to is how your solicitor can contribute to properly preparing you to come into mediation to explore a full range of financial options with your former partner.
Here are our key recommendations:
Keep your mind open, curious and flexible–
You cannot know what direction the mediated dialogue will take when it comes to exploring your options, so keep an open mind. Your solicitor has an important role in encouraging this with their approach and the language they use.
Be clear about your priorities (outcome values and needs)–
What is it that the mediated financial outcome needs to achieve and why are these things so important to you?
As mediators we are used to working ‘from the ground up’ (chunking up) with our clients, beginning the process with the outcome always in mind, focusing first on what is important to each client, what the outcome needs to achieve for each of them (practically, emotionally, psychologically) before exploring a range of options to achieve as many of these things of importance, as possible.
Be clear about your former partner’s priorities (multiple perspectives)–
To be successful, the mediated outcome will need to be and feel fair enough to both of you. Again, when considering your options, your solicitors really ought to (as many do) discuss with you what might make an option attractive to your former partner as well because, unless you both end up with enough of what you each want and need you will not succeed in mediation.
Be clear about each other concerns–
Be ready to articulate to each other what you are concerned about for the future so that the mediated dialogue can focus on overcoming as many of each other’s concerns as possible.
If you like, your concerns may just be another way of framing what is important to you eg “I am concerned about losing the house because it is important to me to remain there because it will provide the children and me with stability which we need at the moment”
The solicitor can ask you about these concerns and help you to be clear about these before you go into mediation so that you can express them to each other in a positive constructive way.
Keep your options open–
The tendency of some people (and solicitors) can be to think that they have THE answer. The difficulty is that when you have two solicitors who think in the same binary way, the conversation can very quickly become polarise.
By coming into mediation with a number of options in mind or a preferred option (coupled with an open mind) constructed with each person’s values, interests and needs in mind, the message will be that you respect each other’s interests and needs and are willing to listen and explore these and other options, together.
This approach will also play an important part in keeping your mind open, respect each other’s views and manage any tendency to react defensively when exploring options which might challenge your values and needs.
If you have not already done so, we strongly recommend that you complete the pre-mediation questionnaire and read the chapter to help you do this.
Here are some words of caution!
It is human nature, when under pressure, for perspectives to narrow and thinking to become more rigid.
It can feel comfortable to have one main carefully constructed proposal which you and your solicitor believe is the right one which you expect to achieve in mediation.
But, if this is your approach, please ask yourself how you would feel if your former partner presented you with one outcome proposal which had nothing or little in it to commend itself to you, packaged in the message that ‘it is my way or the highway’! How open would your mindset and approach be.
So, please ask your solicitor to discuss with you a range of options, focussed on meeting a range of financial needs, reality tested from yours, your children’s and your former partners’ perspective, which you can bring into mediation, to discuss with your former partner.
There is certainly no harm coming to mediation with a ‘preferred option’ but please ensure that this is accompanied by an open, flexible mindset and approach ready to explore your preferred option as well as others which might come out of your mediated conversation.
Also please remember that anyway, when you and your former partner agree some financial proposals, your mediator will recommend that you take time to reflect on these outside the mediation session, on your own and with your solicitor. They will not be asking you for a commitment in mediation. This should come as some comfort to you.
There is only one person who can ultimately bind you and your former partner to your eventual decision and mediated outcome and that is the Judge and only when you and your former partner are ready to ask the Judge to do so.
This will then be presented to the Judge in the form of a Consent Order which your solicitors can prepare for you (see later section in this chapter) based on a set of precedents.
So, please take your time to properly prepare some options for mediation with your solicitor, take time to discuss your preferred approach with your solicitor and take time to have a proper robust discussion or series of discussions in mediation, exploring all your options, ensuring that at all times you feel that your solicitor’s support is sensible and not rigid and polarising.
A good rule of thumb is to find a solicitor who is also a trained mediator and/or a collaboratively trained solicitor or both, as well as a member of Resolution (formerly the Solicitor Family Law Association) with its Code of Conduct, using their search facility.
On now to the question of how your solicitor can help you to work with other financial experts, in mediation.