“The belief that one’s own reality is the only reality is the most dangerous of all delusions” – Paul Watzlawick
So, you have now reached some financial proposals in mediation.
You have both committed to doing various things and now want your proposals to be made binding by the court.
What happens next and where do the solicitors fit in to this stage of the process?
In this final section and video of the series we focus on financial agreements rather than parenting plans because it is unusual to ask for your parenting plans or family arrangements to be made into court orders but if this is what you want we recommend that you seek legal advice.
In terms of your mediated financial agreement, let us assume that you have now worked through all your options together in mediation, reality testing them, narrowing them down to a set of proposals that work in practice, suit your circumstances and deliver the outcome you both want them to deliver.
You will now need your solicitors to prepare a Consent Order for the Judge to make binding.
The Judge has the power to do this once your Conditional Divorce Order has been made.
If your Divorce Conditional Order is some way off or, indeed, divorce proceedings have not yet been applied for, you can still put in place a Separation Agreement, which your solicitors can help you with. Although not binding on the court, a Separation Agreement, if correctly prepared, following the correct process, can be carry a great deal of persuasive legal weight and provide you both with the clarity and confidence you need to move matters on.
Although some mediators can and do prepare financial consent orders and Separation Agreements, at the end of the mediation process, it is still far more common for the solicitors to prepare these, even though the Family Mediation Council now permits mediators to do so.
This may be one important reason why it will have been important to keep your solicitor ‘in the loop’ rather than suddenly presenting them with some mediated proposals at the end of mediation, which are far more likely to be ‘unpicked’ by solicitors who have not been or felt part of the mediation process, who are unaware of the tough mediation journey you have travelled, the difficult conversations you have had to navigate and overcome, the ‘trade-offs’ you may have had to make and who may have a very different view about what is in your ‘best interests’.
Indeed, as we explained in previous sections, you might find it helpful to do more than simply keep your solicitors in the loop in between mediation sessions, especially where there have been more complicated financial information and issues to understand and work through.
Here are a couple of quick examples of situations in which you are likely to find it useful to ask your solicitors to work together, with other financial experts, in between mediation sessions and with implementing your mediated agreement:
- What if, as part of your mediated agreement, an investment property is to be transferred between you? How much tax might have to be paid, by whom and when?
- What if, for example, money is being raised out of a family business to achieve a clean break? There are likely to be important tax considerations, among other things, to take into account for which you will need help from an accountant.
In both these situations, your solicitors should be able to collaborate to support you and your former partner with selecting and instructing the right experts, understanding the information and your options, as well as ensuring that your mediated proposals are implemented in the most efficient way so that they deliver what you and your former partner intend them to deliver.
Read the chapter on business interests in divorce.
Where there are pensions we recommend that you read the chapter on pension – pensions on divorce, in which we cover the option and potential benefit of asking your solicitors to collaborate, in support of you and your former partner, in selecting and properly instructing your Actuary.
Even though we provide you with a significant amount of information in various different forms and even though some separating couples prefer to do things for themselves with the minimum of solicitor support, this can, in some circumstances, lead to a ‘false economy’.
Your mediator will discuss with you and your former partner those situations where it is likely to pay to use your solicitors.
Indeed, more often than not, the best solution is for you and your former partner to find two solicitors willing and able to support you and your former partner to work effectively together, during and in between mediation sessions, in what we refer to as a ‘supported mediation process’ and ‘mediation teaming’.
These solicitors are also likely to be trained mediators and/or collaboratively trained solicitors. If you would like to learn more about this kind of process please have a look at a typical case study and Power point presentation all about the ‘Supported Mediation’ process
When it comes to properly implementing your mediated financial agreement, the nature of the mediation team and how well they work together is very important, ensuring that your solicitors and the necessary experts are communicating and collaborating effectively and efficiently on your behalf.
It should be perfectly possible for each solicitor to effectively represent your individual interests, at the same time as collaborating, when necessary, to support you and your former partner to work together in mediation, and in between mediation sessions, with other financial experts. Indeed, this is what collaboratively trained solicitors are trained to do.
This may mean your solicitors having to speak to each other more often than they may be used to or adapting their normal practices a little to accommodate this kind of ‘supported mediation process’ and ‘mediation team’ contained and managed approach so that they are able to serve your best interests and, importantly, the process you and your former partner have chosen to use, to resolve things and reach financial agreements together.
It may be a step out of their comfort zones but, done well, it will be worth it and feel very worthwhile for all concerned.