It is often assumed that mediation is too ‘soft’ an approach for working out a financial settlement in high-net- worth (HNW) divorce and is primarily a mechanism for establishing arrangements for children. However, such an assumption can deny couples the opportunity to take control of the financial settlement process and reach an agreement in a calm, non-confrontational manner.
There are several advantages of mediation in HNW divorce, including:
Confidentiality – the British tabloids are famous for their love of scandal and will viciously latch on to HNW divorce cases that end up in Court. Mediation is a completely confidential process, allowing you to
work through your divorce without the stress of publicity (which can become cruel) and details of your marriage becoming media fodder that could one day be read by your children.
Win-win solutions – unlike formal litigation, mediation is not a win-lose process. The Mediator, who will be experienced in family law matters, will work with you and your spouse to help you reach a fair agreement and allows you both to move on to positive futures.
Mediation is voluntary – no one can force you to attend mediation, unlike Court where one party can issue proceedings. This alone provides a platform where communication is based on mutual co-operation and respect, providing a robust foundation for a positive outcome.
Choosing mediation does not mean you will lack legal support. Your Divorce Solicitor will advise and represent you throughout the mediation process, ensuring your interests are protected.
However, because the mediation process is designed to be used by people who may not have legal representation, it is free from the legalese and procedures found in Court, allowing you greater control over how things are run.
The cost of going to Court
Even people with significant assets and plenty of money to fund ongoing divorce litigation may baulk at the true cost of going to Court. Legal bills of hundreds of thousands of pounds are easy to achieve. But the cost of litigation is not just financial. Going to Court is stressful and can be time consuming. Furthermore, as it is by nature adversarial, it does little in the way of helping parties learn to put aside their differences and communicate compassionately, something that will be essential going forward if children are involved.
Mediation on the other hand is a great deal cheaper than going to Court. It is also quicker and deliberately designed to make parties feel safe and confident in expressing their needs and opinions. And if matters cannot be resolved by mediation, the option to file Court proceedings remains available.
The process of mediation
A MIAM is the first stage in the mediation process whereby a trained mediator explains the process and the benefits to each party. Not all cases are suitable for mediation, including those in which one party is bankrupt, there is evidence of domestic violence, there are child protection concerns, both have already attended a MIAM in the last four months, or there is a significant risk of harm or hardship. It is also important to understand that mediation is not mandatory, but the attendance of the MIAM is (except in the situations listed above) if you wish to apply for a Family Court Order.
You can choose to attend a MIAM on your own, or with the other party. During the first session, the Mediator will gather information to determine if mediation is a suitable way to resolve your dispute.
If, after the MIAM, you decide mediation is not the right process for you, or the Mediator deems it to be inappropriate, then you will be given a form that proves to the Court you have considered mediation.
If both parties agree to mediation, what happens next?
If both parties and the mediator agree mediation is appropriate, then you will be informed of the next steps. Mediation is a purely voluntary process in which two people can seek to resolve a dispute with the assistance of a trained mediator. It is highly effective in situations in which both parties are open to resolving the dispute at hand, and for any financial matters, there must full financial disclosure.
Mediation is also useful where there has been a previous arrangement, which needs to be updated (perhaps as children get older).
The discussion can be undertaken face to face, but it is possible to use separate rooms; this is sometimes referred to as ‘shuttled mediation’.
During the session, your Mediator will:
Listen to both parties to determine what needs to be worked through
Ensure that both people are heard equally – this is important to ensure a fair process and outcome Offer any guidance or information relevant to the discussion
Advise you if it will be necessary to seek input from other services or specialists
Work towards an agreement which is fair to both parties, always considering the needs of any children involved
It might be necessary during the process to consult with a Solicitor to validate the legality of what is being agreed or discussed – your Mediator will advise how this can be done.
It is important to understand any agreement during mediation is not legally binding, but it can be made legal by drawing up a consent order (drafted by your Solicitor), which must be approved by a Judge. This is essential. To find out more read our blog post on consent orders here.
Mediation is truly effective as a method of resolving HNW divorce disputes. Many people who initially believe it will not be effective for their situation change their perspective during the MIAM process, realising that it is highly preferable to the cost and stress of going through the Court process. For the long-term benefit of all involved, especially for children, it is important to consider the merits of a non-confrontational method of resolving family disputes. Of course, there will always be contexts in which the Courts must be involved, and it might be that mediation achieves only a partial agreement, leaving a final point to be decided by a Judge – but as they say, you will not know until you try.
Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about divorce and financial settlements and the benefits of mediation (and whether it is appropriate in your case) please phone +44 (0)20 3983 1818 or email firstname.lastname@example.org. All enquiries are treated in the strictest confidence.