The first in this series of programmes currently airing on BBC2, and available on the BBC iPlayer here, was great car-crash TV but not a great advert for mediation. If you are going through a separation and Mr v Mrs: Call the Mediator has put you off exploring mediation as an option (and I can see why), please read on …
What we saw in the first episode bears no resemblance to my experience of family mediation. I suspect that this was largely because of the way it was edited and because it is not your average client who chooses to air the baggage of their relationship history on national TV. However, the fact that the mediators weren’t lawyers may also have been a factor.
As a lawyer mediator I was trained by Resolution, an organisation for family lawyers, and have recently been accredited in family mediation by the Law Society.
The things I have been trained to do which, for whatever reason, we didn’t see in this first episode are:
1. Follow a strict structure.
This is particularly important for financial mediations – full disclosure must proceed any settlement negotiations. In the programme, there was extensive discussion by the couple Sue and Peter about a settlement proposal put forward by Peter when it was apparent that Sue was unclear as to his current financial circumstances; any family lawyer knows that an agreement may be set aside in the absence of full disclosure and that it is therefore an essential first step in the mediation process that the clients agree a schedule of their current respective financial circumstances.
2. Give detailed legal information.
A lawyer mediator is not allowed to give advice but by giving detailed information about the law can assist mediating clients to reach their own assessment as to the parameters within which they wish to negotiate, rather than leaving them to negotiate within a vacuum which appeared to be the case with Sue and Peter. In the programme the mediator’s explanation to Sue and Peter about the workings of the law in this complex area was “the starting point is equality”, which was woefully insufficient information, although I accept she may have been para-phrasing for the cameras. She also failed to give an accurate response to Sue’s direct question about whether the appropriate date for valuing their assets was the date of separation.
3. Use the correct terminology.
Peter seemed to think he had made an “offer” to Sue and even the mediator said that they had reached “an agreement”. In fact, one puts forward “options” in mediation and reaches “proposals”. Whilst this may seem to be splitting hairs, in fact it is crucial that clients understand that proposals reached at mediation are not in themselves legally binding; they must be taken to a lawyer to ratify and draw up into a binding agreement.
4. Assist clients to come up with, and robustly analyse, settlement options.
Peter and Sue’s mediator was passive in this respect, asking Sue merely whether she thought the lump sum which Peter was proposing would give her what she needed for the future. Lawyer mediators on the other hand are trained to be proactive in assessing with a couple their capital and income needs, both currently and in the future (e.g. in five years’ time, 10 years’ time and on retirement), including analysis of their mortgage capacities, housing needs, earning capacities, pensions and any tax implications.
5. Encourage clients to seek early independent legal advice.
When, after what turned out to be their penultimate session, Peter said that he was not prepared to mediate further, the mediator suggested that they might both wish to obtain separate independent legal advice. The implication was that they had not had advice prior to this. Lawyer mediators appreciate the benefit to clients of seeking legal advice at the outset and will encourage them to do so; this enables the clients to have an awareness of the parameters within which they wish to negotiate. We also encourage clients to see a lawyer before proposals are finalised to minimise the risk of issues being raised by their lawyers at the agreement-drafting stage (i.e. after mediation has concluded).
6. Focus on the needs of any children.
In the programme, communication between a second couple, Vicky and Jason, about their daughter had broken down to the extent that they were unable to mediate in the same room. We saw discussions focus on what they did or didn’t want the other to do and how the other made them feel and there was no mention of their daughter’s needs at all (although, again, this is likely to have been due to the editing). The Resolution training course teaches lawyer mediators always to bring discussions about arrangements for children back to the needs of the children particularly when parents become “stuck”. As lawyers we are used to being robust with our clients and unafraid to point out behaviours which are potentially detrimental to their children. We also have a network of professionals to whom we can sign post our mediation clients, such as family therapists, counsellors and local support groups, if appropriate.
7. Actively manage the process.
A third couple in the programme, Nicky and Martin, were unable to agree on arrangements for Martin to see their two young sons. They were allowed by the mediator to interrupt one other repeatedly and make inflammatory comments, which I appreciate could well have been for the cameras. However, the Resolution training teaches lawyer mediators to insist on our clients showing respect for one another and for the mediator. We make it clear at the start of the process that they may each hear things from the other with which they do not agree and which may make them angry, but they need to listen without interrupting and they will then be given the opportunity to respond. Any name calling or bullying is not tolerated.
I do, however, appreciate the entertainment value of Mr v Mrs: Call the Mediator and will certainly be tuning in for future episodes. I just hope it doesn’t detract from the positive role mediation can, and does, play for many separating couples in bringing about an amicable, cost-effective and dignified end to their relationship.
If you are interested in finding out more about family mediation, please contact me, Sarah Jackson, or my assistant, Philippa Ridehalgh on 01225 462871.
Image by Gerald R Ford School of Public Policy, University of Michigan under a creative commons license