Ten tips for advising clients alongside mediation

Posted: 20/01/2023

Family Mediation Week 2023 is drawing to a close, a week where family law practitioners work to raise awareness of the benefits mediation can bring to separating families. It is also an opportunity to reflect on our own practice, and how to best support clients when they are engaged in mediation.

Often, we send clients (happily or otherwise) off to mediation, but what happens next? Involvement does not always end there. It is commonplace for family law solicitors to continue to advise a client ‘in the background’ alongside their mediation. We work with our clients to ensure they are properly prepared for and can get the most out of mediation. Here are our ten tips for ensuring a client’s mediation run smoothly:

In general, the earlier a client is referred to mediation, the better the chance of success.

It is tempting as a solicitor to carry out assessments as to whether mediation is appropriate for a client and their case, but it is important to remember that we are only hearing one side of the story, and this makes it difficult to make an unbiased assessment. Mediators are specially trained to assess suitability for mediation after hearing from both parties, and encouraging clients to at least explore this option with a mediator[1] can enable them to make an informed choice on whether it is right for them.

Ensure a client knows from the outset that mediation discussions are confidential and without prejudice.

It seems like a simple point, but many clients have no knowledge of the process or what this means for them. Firstly, they should not discuss the contents of the mediation with any third party other than their solicitor. Secondly, if an agreement is not reached, discussions cannot be disclosed to a court further down the line without agreement from both parties – this can be a source of frustration to clients at times.

In financial mediation, a client must be aware that while the mediation is private and confidential, that this does not mean everything can be ‘kept back’ from their spouse.

Financial disclosure falls outside the confidentiality provision and is made on an open basis, preferably in a Form E. Clients need to understand that they and their spouse must provide full and frank disclosure as they would if they were in court proceedings, and failure to do so can result in a settlement being undermined or set aside at a later date. 

It is not the role of a mediator to verify or query either party’s financial disclosure, many clients may not realise this.

We help our clients with the preparation of their Form E to ensure that it is correct and well presented. After parties have exchanged Forms E in mediation, this is an excellent time for a client to return to their solicitor for advice. Solicitors can review and consider with a client whether they want to ask any questions of the partner or spouse’s disclosure ahead of the next appointment. Clients should be made aware that their solicitor must have had sight of the financial disclosure before they can advise on a settlement proposal.

When proposals are being exchanged, either in financial mediation or children matters, things can become heated, and a client may feel pressured to agree to their partner’s proposal or be tempted to refuse out of hand.

Instead, they could be advised ahead of the mediation to respond, ‘I’ll consider it’, particularly if they feel uncomfortable answering there and then. This shows the other party that they are being listened to and allows the client breathing space to reflect and take legal advice. If a client needs support solicitors can be involved in the mediation too, in appropriate circumstances.

It can sometimes feel to a client that the mediator is ‘against’ them or that they are siding with their spouse or partner.

Clients should be reminded that mediators are impartial, and their role is to facilitate discussions, not to take a side.

A client must understand that anything they send or share with their mediator will be shared with the other party, and their solicitor is on hand to advise them about their communication.

It can be tempting for a party in an acrimonious dispute to send emails to the mediator complaining about the other party’s behaviour. Solicitors can encourage clients to think about everything they send, understand how it will be viewed through the eyes of their spouse or partner and consider how this might impact the progress of mediation.

It is important for clients to take legal advice whenever they need it during a mediation.

As solicitors, there is a need to consider how to keep in touch with clients throughout the mediation process, and how to support and advise them without risking de-railing the mediation process – it can be a difficult balance to strike. Mediation has the best chance of success when mediators, solicitors and clients work together and are supportive of the mediation process.

Remind clients that the decision making and the power to reach an agreement lies with them.

This can be empowering and encouraging particularly when a client understands that the alternative is to pass the baton to a family court judge to make decisions for their family on their behalf.

It’s ok if mediation doesn’t result in a final agreement; fear of this should not be a reason to shy away from giving it a go.

Sometimes mediation helps to bring parties closer towards an agreement, and this follows shortly after the mediation has concluded. In child inclusive mediation, the voice of the child has been heard by both parents early on, and this can be invaluable in helping to guide what comes next.  

At Penningtons Manches Cooper, we have a varied toolkit at our disposal to assist our clients including trained in-house mediators. We recognise that each client is an individual and consider their particularly family needs to create a bespoke strategy involving a wide range of dispute resolution processes other than the court process, including mediation, collaborative law, early natural evaluation, arbitration and private financial dispute resolution hearings. We help our clients see beyond their immediate frustrations they may have with their partner and move forward from what has happened in their past to build a positive future for their family. If you would like any further information, please contact our family team.

[1] Assuming mediation exceptions not applicable.

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