IN THE PRESS
"MEDIATING THE PAST" -
ARTICLE IN FAMILY LAW BY DR BARBARA WILSON
(reproduced by kind permission of Jordans Publishing)
At first glance, this paper’s title seems at odds with mediation’s usual conventions. Family mediators are typically trained to encourage the parties to work in a future-focused way; past events often need to be acknowledged but the general thrust of the process is to assist clients to make decisions about the present and future.
This emphasis fulfils a number of purposes. First, mediators are not adjudicators and cannot make findings of fact regarding conflicting accounts of historic events. Secondly, mediation as practised within Legal Services Commission franchises is distinguished from therapy, although therapeutic mediation exists as a discrete process (JM Wiseman, Mediation Therapy: Short-Term Decision Making for Couples and Families in Crisis (Lexington Books, 1990)). Mediation is not offered as a psychodynamic process for addressing psychological difficulties, although some authorities draw from mental health constructs when theorising mediation (SV Sandy, SK Boardman and M Deutsch, ‘Personality and Conflict’ in M Deutsch and PT Coleman (eds), The Handbook of Conflict Resolution Theory and Practice (Jossey-Bass, 2006), at pp 331–355). Thirdly, the court is typically oblivious to matters of ‘blame’ when determining family matters, except where the judiciary would consider this inequitable – a stance generally reflected in mediated outcomes.
While the past is often considered too fraught an area of enquiry for mediators, practitioners should not necessarily avoid such discussions, especially where these seem appropriate and potentially fruitful. Clients often want to talk about past events and can feel irritated and silenced if not permitted to do so. Practitioners will, however, exercise considerable caution before venturing into their clients’ histories, given the obvious risk of opening any proverbial cans of worms.
The Past as Beneficial
The general lack of moral accountability or consequence reflected in family law financial decisions can be a source of great puzzlement and irritability for people, especially those who feel a strong sense of entitlement or injury as the ‘innocent party’. Because mediation is an accommodating process, it is possible for participants to mutually agree to discuss historic matters as part of the process. This may sometimes lead to voluntary explanations and apologies conducive to resolution. A couple’s history together is seldom uniformly unhappy and some will find it useful to explore previous events in order to identify strategies which were helpful to them at an earlier stage. Such exploration can lead to their adopting former tactics – perhaps in a
modified form – to help manage their current conflicts. Examples might include how they handled issues which were previously uncontentious but are now in dispute, such as contact handovers.
Exploring the past can also help clients to decide which strategies have not worked, especially those which are causing any problems they now wish to address. Examples might include doorstep arguments or unhelpful text messages. As one couple recently concurred ‘we don’t want to go back to that again’ (meaning arguing about money in front of their children). This expressed intention was formulated as a joint goal for mediation, making it possible for them to work out what had worked in the past and using this information to resolve their current problems.
Avoidance of the past is sometimes not possible, or desirable, and this paper reviews four mediated matrimonial cases where it was essential to focus on past events. All featured low asset/income families, with six of the eight clients involved qualifying for publicly funded mediation. Their circumstances have been generalised to protect confidentiality and are very briefly discussed below in terms of certain individual and overlapping features.
Case Outlines
Three couples had originally separated some years before coming to mediation. They reported having informally – and fairly amicably – distributed their net assets at the time of parting. Two couples had chosen not to take legal advice, and also unwittingly overlooked the relevance of substantial pension funds. These were not reflected in their distributions. A third couple each sought independent legal advice when they separate but decided not to follow the recommendations they received.
Two couples subsequently reconciled for some years before finally splitting up, with one couple having further children together during this time. The third couple did not reconcile, although one of the spouses formed a new relationship whilst still married, and had children with their new partner.
A fourth couple’s circumstances were somewhat different. They were originally together for about 5 years, during which time a child was born. They then parted and lived separately, the wife remaining in the former family home with a long-term cohabitee. There was regular and uncontentious contact between the child and the husband, who lived at his new partner’s house. This couple did not divorce or enter into a deed of separation, and each subsequently had more children with their cohabitees. When they finally decided to divorce, 13 years after separating, they were referred to mediation in order to sort out their financial affairs.
Issues and Observations:
It goes without saying that all four situations presented minefields of complexity, confusion and general messiness. Below are some issues and observations:
• Two cases lacked almost any documentary financial evidence about the earlier distributions, making it extremely difficult to establish what had actually happened. The clients concerned considered these earlier transactions pertinent however, and wished to factor them into their negotiations.
• In one case both parents rented privately after selling the original family home. They
shared the net equity equally, repaying debts and using their respective balances for general living expenses. When they eventually reunited they had very little money and were obliged to repurchase a property much more modest than the one they had sold. When their relationship finally broke down the matrimonial assets were considerably less than if the first separation and distribution had not taken place. The result was fewer available options in terms of settling their finances, especially as by now they had had more children together.
• Two clients had substantial final-salary pensions. The possibility that an equitable final settlement might now involve pension sharing orders constituted a major stumbling-block for both.
• In three cases the debts which built up following the initial separation were largely caused by the need for each spouse to set up a new home. Arguably these liabilities would not have accrued had they always remained together.
• New partners and children were relatively influential/material in some cases, even though none was actually involved in the mediation process. They effectively compounded the mediations’ complexity however, constituting emotional (if not necessarily actual) stakeholders (JH Wade, ‘Bargaining in the Shadow of the Tribe and Limited Authority to Settle’ (2003) 15 Bond Law Review 115).
• At least one spouse of each couple was, understandably, very unhappy on realising that their initial distributions were not necessarily final from a legal perspective, and further adjustments must at least be considered.
• It is commonplace for divorcing spouses to be angry with each other but some of the clients were particularly so. Apart from an overall sense of injustice and resentment about the need to visit/revisit their finances, there was an especial mutual hostility between those couples who had reconciled before finally parting. This animosity was possibly a manifestation of the old adage ‘catch me once, shame on you, catch me twice, shame on me’. Their outrage at each other was perhaps matched only by the self-directed anger each felt as a result of finding themselves in this position. All four cases were particularly difficult to mediate – although three were resolved, one broke down over pension issues.
Discussion
The report of the wife awarded £220,000, 22 years after separation is a salutary reminder of the need for separating couples to ensure that they formally finalise their financial positions (http://business.timesonline.co.uk/tol/business/law/article6489253.ece). The clients described here all tried to deal with matters informally but did not recognise that their somewhat ad hoc arrangements might create unwelcome consequences later on. One couple acted against advice. Faced with untangling such situations, with few ‘facts’, documents and a series of complicated events and transactions, what might help the mediator?
One controversial theoretical perspective argues against realism, claiming that ‘reality’ is socially constructed (JR Searle, The Construction of Social Reality (The Free Press, 1995)). Variations of Searle’s thesis have been highly influential in many spheres, including the apparently factually-based discipline of financial accounting (TA Lee, ‘The FASB and accounting for economic reality’ (2006) 6 Accounting and the Public Interest 1–27). Whilst social constructionism’s challenges and critiques are beyond the scope of this paper, it nevertheless offers a theoretical means of making sense of financial voids in ancillary relief
matters. Obviously, no theory should be engaged which might aid dissembling, or create or endorse injustices. There was no suggestion that any of the above clients had dissipated or concealed assets – they were simply low/no money couples who needed to draw a line under their respective financial histories.
Using a social constructionist approach helped them to reconstruct their numerous past financial dealings. Of equal importance, they were mostly able to articulate the rationales informing their past decisions. It was useful to draw up detailed chronologies of the periods in question and record the relevant transactions in tables which provided additional information in their memoranda of understanding. Any gaps were described and dealt with as accurately as possible. All this work was undertaken in joint sessions, using elicitive methods (DW Young, ‘Prescriptive and Elicitive Approaches to Conflict Resolution: Examples from Papua New Guinea’ (1998) 14(3) Negotiation Journal 211–220). All available documents were exchanged, with an emphasis on the usual caveats about disclosure.
The term ‘unfinished business’ also has common currency regarding psychological processes. It would be incorrect to imply that these couples used mediation to transform their conflicts, or improve their communications about money. As already described, they were all particularly disaffected and wanted to reach swift conclusions. The mediation process necessarily had to address their angry feelings and desire to settle matters speedily. It was equally important to ensure that sufficient time was spent establishing mutually acceptable accounts of their financial dealings, obtaining all available information and preparing interim spreadsheets to assist with obtaining advice. Those that settled did so on the basis of what could best be devised in their limited circumstances.
Conclusion
The current debate about whether civil justice is under threat is relevant to these cases. I assert that few (if any) family mediators are anti-court or anti-adjudicative (Woolf v Genn: the decline of civil justice http://business.timesonline.co.uk/tol/business/law/article6564894.ece). I also believe that a civil society demands the proper funding of its courts by government, rather than self-finance.
I am very aware that the couples discussed might have decided to litigate instead of using mediation. Whilst they possibly saw mediation as a cheaper option – and therefore as preserving more of their reduced assets – this may not entirely explain their choice. Whereas some disputants will always feel their conflicts must be settled by an authoritative figure, I suspect there is an increasing number of people who wish to determine their own futures, including how they settle their differences on divorce. This view also reflects Resolution’s endorsement of prenuptial agreements (http://www.resolution.org.uk/site_content_files/files/a_more_certain_future___resolution.pdf). The wish to self-determine reflects a population now accustomed to greater choice, whether this is about holidays or healthcare. It is feasible that this attitude has permeated attitudes to matrimonial litigation.
The considerable support for Baroness Ruth Deech’s views (‘What’s a Woman Worth?’ [2009] Fam Law 1140) suggests that the ‘paternalistic and unprincipled fashion’ in which the judges have developed the law is unpalatable to the public. The couples mentioned here experienced considerable problems as a result of their earlier informal decisions, although all had seen these
as fair at the time. Unfortunately, they subsequently came to regret their decisions. Faced with the current uncertainty of ancillary relief decisions and continuing lack of parliamentary reform, it is hardly surprising that they again sought to determine their own outcomes, although this time by seeking consent orders for mediated outcomes and based on a shared understanding of the past.
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Article published in Family Law - March 2007
Dear Sirs
We write in response to Sue Tilley's article, titled "Providing Legal and Financial Information".
Sue Tilley's research and findings in her article in the January edition of Family Law do not necessarily represent the roles and capabilities of mediators.
A mediator's role is one of neutrality, and whilst not giving advice, they can comprehensively identify and develop options with clients. As the writer correctly identifies, clients under stress can fail to comprehend the difference between advice and information and this can lead to later assertions that the mediator "advised" them to take a particular route.
The study also concludes that women may not have the same level of access to good quality legal advice as men. It may be statistically correct that more women than men are publicly funded. However, our experience would indicate that a substantial number of men choose not to access legal advice during or even at the conclusion of mediation. Usually, these men fall just outside the PF limits and yet cannot afford (or do not wish to take) legal advice. Furthermore, people who pay for their legal advice are no more immune from suffering a series of solicitors within the same firm as are publicly funded clients.
The Form E or a similar version is used widely within the financial disclosure process in mediation, and covers all the information that would be dealt with through the client's legal advisors, had they chosen to litigate.
It was not made clear what the parameters of the research dissertation were. However, with only women being interviewed, it cannot be a fair conclusion that women fare worse than men do in financial negotiations. It is often the case that one party has less knowledge of the finances, and this applies equally to men and women. It may be particularly true if one party is no longer living in the family home that they may have limited access to paperwork and financial information. The financial disclosure process in mediation enables both parties to obtain a current valuation on the joint and sole assets and liabilities, which is key to laying the foundation to developing options for settlement. If there is an imbalance in knowledge between the parties then it is the mediator's task to ensure that this is redressed.
The concept of understanding complex pensions is not alien to mediators, and certainly the onus is on us to ensure that our continuing professional development is up to date and relevant. The UK College of Family Mediators requires practising mediators to gain 10 CPD points annually [not 7as reported] and there is a wealth of providers [including Family Law] who offer training courses to equip mediators with the knowledge, learning and support to enhance their practice. Indeed, diligent mediators can be more informed than their legal colleagues on some occasions - recently a mediator colleague who had discussed the option of a client applying for further information reported that the client's solicitor had not heard of Form P. Mediators regularly explain to clients the benefit of obtaining a report from a pensions expert in complex cases. However, the vast majority of clients will choose not to take this route, citing the cost and time involved as reasons.
Proposals for settlement are contained in Memoranda of Understanding with a view to them being implemented by way of Consent Order, and are checked by the mediator's Professional Practice Consultant. Some services, such as ours, also have a legal consultant to advise on points of law and implementation issues. Memoranda are not designed to be prepared with major issues outstanding. Many services also send out summaries after each mediation session, which the client can discuss with their legal advisor. Susan Tilley expresses the view that mediators should be able to understand whether the legal advice obtained by the clients is correct. It is not the role of the mediator to make a judgement on the ability of the solicitor to provide correct legal advice to their clients. It is quite common for both clients to receive conflicting advice from their respective solicitors.
Despite some of the above reservations, we agree with Susan Tilley that, as a profession, the level of legal and financial knowledge could be improved. To impose a mandatory element of legal/financial training in the annual CPD quota could go a long way to solving this issue.
Yours,
Wendy Dolby-Stevens and Alison Dalley
Arena Mediation Ltd
