Main Content

Mediation - The Credit Crunch Divorce

Divorce can be expensive. In a recession, when money is tight, we can save by doing things ourselves: we decorate our homes ourselves instead of hiring a builder to do it for us; we cook our own food instead of going to restaurants. Still, we get an electrician to do the rewiring, a plumber to deal with the gas and we buy quality paint and brushes to decorate afterwards; we buy good ingredients for our cooking and get quality cookery books to guide us.

Mediation is a way to disentangle your marriage, civil partnership or relationship without paying huge amounts to lawyers:

You can do a lot yourself.
You have guidance from an expert mediator.
Mediation is cheaper.
You can find solutions the court would not be able to order.

Is a mediator really necessary?

Do-It-Yourself

Splitting up is a difficult time and ideally most people want someone else to deal with everything. There are some things lawyers cannot take off you, but they can make it easier.

If you want to, however, you can do a lot of the work yourself. One way to do so is to do the leg-work:

collate your financial details, your bank statements, your pension valuations etc.;
complete your own financial disclosure form (Form E);
work out options, for instance, where you each could live by researching the housing market;
negotiate directly with your former partner.

This leads directly to the second area where you can do a lot yourself, namely to cut out correspondence between solicitors by communicating directly with each other. This is, however, also the tricky bit and this is where mediation has its strength.

Mediation

One factor in relationships breakdowns is often that there are communication problems between the partners. Family lawyers too often hear sentences like: “She doesn’t understand me.” or: “He just won’t listen.”

The paradox is that just when everything comes to a head, the one thing both partners need to do is to communicate so that they can disentangle their former life together. This comes at a time when they are least likely to be able to do so, with all the pressures of the finality of a separation and divorce or civil partnership dissolution. This is where the mediator comes in.

A mediator is a neutral professional family lawyer with specialist training who will help you communicate and guide you so that you can give full disclosure of the facts and financial circumstances and then explore solutions together. You will both meet with the mediator, usually for about 1½ hour-sessions every fortnight or so and discuss the issues and try to find solutions. The mediator may suggest options for consideration and will ensure that any proposals you consider will work for both of you.

Cheaper

Mediation is a lot cheaper than each of you having a lawyer:

each of you will only pay half of the mediator’s fees (or you can agree that one of you pays or that the fees are paid from a certain fund);
you cut out costly letters (your lawyer drafts a letter, sends it to you, you approve it, your lawyer sends it to your former partner’s lawyer, they send it to your former partner with a suggested reply etc.);
the process is far quicker than litigation or traditional negotiations between lawyers;
you will be doing a lot more yourselves.

This is an important consideration in a recession when money can be tight.

Tailored Solutions

Courts can impose orders on you, but judges are constraint by the orders Parliament thought of more than 35 years ago in 1973. Some of this is outdated and no longer works for the 21st century. This also does not work for every family and even at a final hearing the judge probably will not have enough time to get to know your individual circumstances and understand them fully. This is particularly the case for unconventional families including gay and lesbian couples.

By finding solutions together you can try to tailor them to your individual needs. For example:

If you have children, you may not want to sell your home and split all assets now, but you can agree to postpone selling the house until they are grown up.
In an uncertain housing market you can agree to sound out when it is best to put a property up for sale so that it is not sold at a bad time and you both lose out.
If you run a business, you can agree how you would be able to continue to do so after a separation, rather than risk the business going under in the credit crunch because the court orders a sale for funds to be raised to pay one of you out.
In times of economic uncertainty the value of some assets can be a moot point: you can agree on ways to find out the value which the court would not order, including, for example, testing the market.
If your home is too large and too expensive to run, you can agree to sell it sooner rather than later: court proceedings can take 18 months to 2 years, by which time you may be in negative equity or face repossession.
You can agree on interim issues, such as dealing with servicing debts, reducing the monthly mortgage burden and other issues that arise from the credit crunch.

Being able to tailor your solutions is one of the main reasons to go for mediation rather than let the court decide.

To find out more about mediation, see the specialist pages on mediation.

Is a mediator really necessary?

If you can find solutions with a mediator between the two of you, why can you not just sit down together and work it out without having to pay for mediation? From experience, this works sometimes, but in most cases it does not.

Even if you are able to talk to each other in friendly terms, trying to start a conversation about an overall settlement can be dangerous. Instinctively, most people are protective of themselves and their financial position, more so, probably in times of economic crisis. When suddenly faced with a proposal about an overall settlement (“Let’s sell the house and split the proceeds”), in most cases they will start arguing against it, even though they may know that the proposal is not far off the mark. Instinctively, most of us do so. This way, however, we will build a protective wall and entrench our position. It is then almost impossible to move on when both parties have established that they fundamentally disagree, even though they both know they need to move.

This is an example for this type of position-based bargaining:

Adam meets Lisa at Starbucks “to talk things over”. He tells her that he thinks the house needs to be sold and they should split the assets. He knows that Lisa may need a bit more than 50% to buy something suitable for her and the children, but he does not want to give this away, at least not at this stage.

Lisa is taken aback; the proposal comes as a shock. She thought Adam wanted to talk about contact with the children. She sees herself having to move into a council flat and tells Adam that there is no way that the house could be sold: It is just about large enough for the children and herself and in any event Jack has started bed-wetting again and would be unable to cope with moving.

When she thinks it over later on, Lisa realises that she could move somewhere a little smaller, terraced instead of detached and with a loft conversion, but still large enough and in the same area. She only said the thing about Jack’s bed-wetting to stave off Adam, who she felt came over heavy on her.

At this stage Adam and Lisa have dug in. How can they move on?

Often in this situation, fear and resentment come out and then suggesting mediation once this has happened may fall on deaf ears. This couple may well end up litigating and spending huge amounts on lawyers.

If you are thinking that you and your former partner would be able to find a solution yourself, why not discuss the option of mediation first? Most people will agree that they also want to come to a solution in a non-confrontational way, that they want to save money and will consider the options together.

If the issues are simple and you manage to deal with your disclosure swiftly, you may not need more than 2 or 3 mediation sessions, but at the same time you do not risk being in a position where you have both unwittingly dug in.

You will start your mediation on a high point: you have just agreed on something: to go to mediation. The mediator can then try to guide you through the disclosure and negotiation step-by-step and cushion any suggestions from one of you that may trigger the other one to stonewall.

Andrea Woelke is a qualified mediator. To find out more about mediation, click here.

Mediation and collaborative law provide a more streamlined, non-confrontational and cost-effective way to resolve issues.

Andrea Woelke is a mediator and a collaborative lawyer. For advice on your specific circumstances contact Alternative Family Law: ring or email us.

April 2009

Alternative Family Law

Left Sidebar with Navigation for this Section

Alternative Ways

Search Alternative Family Law

Right Sidebar: Links and Further Information

Main Content

Mediation - The Credit Crunch Divorce

Do-It-Yourself

Mediation

Cheaper

Tailored Solutions

Is a mediator really necessary?

Alternative Family Law

Disclaimer