As well as being highly effective in resolving civil and commercial disputes, mediation is successfully and commonly used in supporting families. The use of mediation in settling family disputes is used to facilitate agreements that are in the best interests of parties following separation/divorce. In other words, mediation is not only advantageous in the commercial context – there are also bountiful advantages in the circumstances of family breakdown.
This guest blog for Ragon-Chambers Mediation explains one of the many long-term benefits of mediation for families, which in fact also a benefit of mediation as a whole, including in the civil/commercial context. Essentially, by using mediation to resolve disputes, there are improved chances that future relations will be stronger, and skills will be learnt to ensure better prospective working relationships.Thus, in not only settling a dispute and reaching an agreement, parties can move forward with a view that some level of amicable relationship can be had that prevents future disagreements.
In the family context, many of our clients come to mediation in very uncomfortable situations. There can be a lot of animosity and resentment following recent relationship breakdown and ongoing disputes, which influences decision-making that may fall outside best interests and thus perpetuates the problem. In these circumstances, many turn to the courts, as there is a presumption that this is the only way to resolve the problem. One need only look to the press, the media, or the general conversation to see that court is perceived as the go-to solution for family disputes. Unfortunately, this presumption is occasionally reinforced by some lawyers.
Regrettably, many do not realise that using the courts can be detrimental in the long-term. Yes, one party may win and achieve an order that is in their interests, but the other party – “the loser” – can be left high and dry and therefore leave with worsened resentment than when the proceedings started. However, even where individuals do recognise these negative attributes of the courtroom, mediation can often be disregarded as an appropriate alternative. If you have read other articles regarding mediation, or have personal experience, you will be well aware that it is part and parcel that the court system is far more costly, timely and acrimonious than mediation (see for example our post: 21 things you NEED to know about family mediation. As such, where parties utilise the courts, the costs incurred, and the potential memories of an often-argumentative experience can lead to very damaged future relationships. The “winner – loser” nature of litigation can be very damaging to the family unit post-separation, which need not be the case.
Mediation, on the other hand, removes the winner and the loser and in fact seeks to facilitate an outcome that works for all parties: everyone can be a winner. This at first glance can seem utopian, especially to those in high conflict disputes, but in fact many clients are surprised that with the support of an independent unbiased individual – the mediator – views are heard in a different light that encourages the achievement of positive outcomes. The advantages of mediation, for example in being an informal, confidential and safe environment to discuss disputes, can actually result in better working relationships in the future. For instance, in our experience, separated parents who come to mediation to reach agreements on child arrangements not only go away from mediation with an accepted agreement as to how child contact will look post-separation, but more importantly leave with improved communication skills that can assist in resolving disputes in the future. Additionally, following successful mediation, parents may always come back to mediate in the future should such disputes arise.
As well as reaching agreements on a particular dispute, mediation can assist in separate parties developing a plan as to how to move forward. This can include how to put the agreement into action and, perhaps more importantly, how to ensure its longevity. In the family context, this could be, for example, a parenting plan. We use parenting plans with countless clients, and they can be exceedingly effective. Considering this in a commercial context, mediating an ongoing dispute can not only result in some form of agreement or settlement, but also a plan as to how proceed post-dispute. This not only prevents disputes re-materialising, but also allows for a shared understanding as to how future partnerships can continue. Mediation seeks not only to ameliorate disagreements, but also to support parties to move on from differences and reach levels of civility that litigation rarely achieves.
An area of dispute where we see mediation being very successful is in relation to family businesses, post separation or divorce. It is not uncommon for family units to run a business and on separation, this can become messy. Many parties during a divorce may end up facing lengthy court battles regarding business which can result in extremely high legal fees and damage to the business as a whole. Mediation on the other hand provides a platform for separating parties who both have interests in a business to bring that as a specific agenda point during mediation. This allows for parties to discuss the future of their business as part of the separation proceedings which hopefully will lead to parties being able to settle the dispute outside of court and come to an agreement which both parties are content with. For example, see the following case study:
Case study
Amir and Paul came to mediation to discuss their financial assets and business following divorce. They ran a successful business for a number of years during their marriage. The business was set up by Amir before he married Paul, but during the marriage Amir gifted Paul a 25% share in the business. Paul worked on the business full time. He undertook administrative tasks and managed the accounts.
The divorce process for Amir and Paul had become acrimonious and attempting to settle their finances and the future of the business was proving very difficult. Amir no longer wished for Paul to have an input in the business and was seeking for Paul to renounce his shares when he left the family home. Paul agreed that it was not suitable for him to continue working on the business post-divorce but felt that he was being left “high and dry” by renouncing his shares and losing income from the business. Amir and Paul had lived a very comfortable life during their marriage. Paul said that his work on the business had increased the value of the business during their marriage.
There were two options for Amir and Paul in attempting to settle this dispute. They could have used the courts to reach a settlement, or they could attempt to resolve the dispute themselves at mediation. Despite their disagreements, Amir and Paul recognised that using the courts would take decision-making out of their hands and result in their finances being significantly depleted due to legal costs.
Amir and Paul had a total of 4 mediation sessions and most of the discussion centred around how to negotiate the future of the business. Their mediator met with both parties individually at first so that their views could be understood. The mediator encouraged the parties to come up with their “golden solution”, their “silver solution”, and their “bronze solution”. In other words, what was the best case and worst (but bearable) case scenarios.
In bringing these individual scenarios to the final sessions, Amir and Paul were able to meet in the middle. It was decided that Paul would renounce his shares to Amir, but Amir would pay Paul a continued (and higher) maintenance payment to essentially compensate for the loss of income from no longer being involved in the business. This resulted in an outcome that both parties were happy with in that Amir now had 100% ownership of his business, but Paul was no longer left in a position where he was “high and dry”. They also split their matrimonial assets 50% so as to ensure a clean break.
The parties took their agreement to a solicitor who drafted a consent order so that this was legally binding. The cost of mediation was £1,200. They also paid a solicitor £300 for the drafting of the consent order, which brought their total costs for resolving the dispute to £1,500. This is significantly lower to the cost of court fees which in this case could have quite easily exceeded £4,000 - £6,000. In addition to the saving in fees, this case study illustrates how mediation can be used effectively to reach agreements that parties are happy with in a safe environment that keeps decision-making in the hands of the parties.
About the author
Jack Bickerton is a trainee family mediator with Direct Mediation Services, one of the leading family mediation firms in England and Wales. He graduated from the University of York with a LLB in 2018 and from the University of Leeds with an LLM in 2019. In Jack’s spare time he is a senior editor of the legal journal, King’s Student Law Review.
Direct Mediation Services specialise exclusively in family mediation. We are proud to support individuals from all walks of life and offer both private and legally aided services. Every day we see the benefits of mediation and wish to add to the discussion that promotes the successes and advantages of it as a form of alternative dispute resolution. Though in terms of long-term benefits of mediation holistically improved working relationships are just one of the major advantages. This includes parties in a civil or commercial context. Mediation provides a forum for parties to come together and attempt to settle ongoing disputes amicably as a way of reducing conflict and moving forward. To engage in high conflict litigation rarely results in such amicable outcomes.
So, whether you are ex-partners, previous employers-employees, or business partners – mediation can encourage you to reach fair, amicable, and shared decisions in a way that looks to improve working relationships in the future. You may come to mediation and fail to reach in agreement; it would be folly to make such a statement. However, surely it is worth a shot to see if this long-term gain can be achieved, whatever the relation.
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