Stacey Nevin

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Everything You Need to Know About Family Mediation Process

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Stacey Nevin
Stacey Nevin
Partner
Kingsley Napley LLP

In this Mediation Week, Stacey Nevin explains all you need to know about the family mediation process

Mediation is a confidential and voluntary process which involves a series of meetings between a couple and a mediator in which, together, they try to reach an agreement, perhaps on financial matters and/or children arrangements, during a divorce or separation.

A mediator’s role is to guide you and your ex through the process and assist you both in reaching an agreement, rather than to advise you. Importantly the mediator is a neutral professional meaning all the choices and decisions remain yours.

The drawbacks

The mediation process does not guarantee an outcome. The process is voluntary, so either you or your ex can end the process at any time and a decision cannot be imposed. The negotiations also remain confidential, and cannot be referred to in correspondence or court proceedings.

However, the only process that guarantees an outcome for a separating couple is a final hearing in front of a judge (whether this is by way of a private arbitration process or via the public courts), which can be expensive and slow.

The benefits

Even if you have solicitors in the background, mediation usually results in significant cost savings as the work of solicitors is greatly reduced. Where mediation does not result in an overall agreement, it can still narrow the issues so that the work your solicitors need to do is reduced.

There is an increasing push towards transparency in English courts, and so publicity is no longer a worry just for celebrity clientele.  Mediation offers complete privacy.

The family mediation process sees you and your ex coming to a compromised agreement, rather than having a judge (a total stranger to you and your family) impose an outcome. There’s a great power in this and research has suggested that couples are more likely to comply with terms to which they have agreed rather than terms they have had imposed on them.

Not only can mediation be more flexible in outcome, but the process itself is less rigid. You and your ex get to set the agenda and can tailor the process to suit your needs and priorities, with a timetable that works for you both.

Third parties can also be brought into the process by agreement. I have mediated a couple who were seeing a family therapist in parallel, to support them in telling their children they were separating. Her involvement was crucial in helping my clients move forward with living apart as they felt more confident in telling their children and had more trust in each other in doing so. Whilst they were separating, for the purpose of that conversation they were a real partnership, focused solely on their children, and it got their co-parenting journey after separation off on a far better footing.

I’ve also conducted mediations with my clients’ financial advisors present, who adjusted forecasts in the session as proposals changed.

The structure of mediation can be flexible too. The traditional model sees both individuals sat around a table with the mediator, either in person or remotely. But there are now options like shuttle mediation, whereby each person is in a different room, with the mediator shuttling between the two. This can even be conducted remotely, with the use of breakout rooms.

If both individuals and the mediator agree, solicitors can attend mediation meetings for the purpose of getting legal advice without delaying the momentum of discussions.

What can be mediated?

Any issue can be mediated.  Mediation can relate to finances and can also be used for issues relating to arrangements for children.

It can also be used to help a couple reach agreement on very discrete points. For example, I have had clients use mediation to agree on how to introduce a new partner into their children’s lives and another wanted to discuss arrangements for a dog loved by both the parents and their children. In that respect, mediation can be a very proportionate way of dealing with more discrete matters.

Is mediation always appropriate?

No, and part of the mediator’s role is to assess the suitability of the case for mediation.

If mediation comes to an end for any reason, without an overall agreement, your mediator will usually explain alternative options to you and signpost you to any helpful resources.

Can mediation be used where there has been domestic abuse?

An old-fashioned view is that mediation can never be appropriate where there has been domestic abuse. I find this quite problematic when a survivor of domestic abuse wants to mediate. Domestic abuse can remove the agency and control from victims, and I am loathed to remove that if survivors want to mediate. By taking mediation off the table, there is potentially a greater risk of court proceedings, which is a process that can be traumatic for some.

However, the decision to mediate where there has been abuse must be one that is taken carefully. The family mediation process must be safe, and should not be used as a means to continue abuse. Your mediator needs to be confident that they can address any power imbalance, so both of you feel comfortable with voicing honest views in the room and will not feel pressurised into an agreement with which you’re not happy. Shuttle mediation can help with this.

Sometimes, however, it’s still not possible to ensure there is a balance of power or that mediation can remain a safe process, and a mediator then needs to conclude that mediation is not suitable. In these circumstances, they will usually signpost you to resources that might be able to offer you further support or guidance.

Can children be involved?

Children can be involved directly in the family mediation process by way of a Child Inclusive Mediator. These are specially trained mediators, who are able to speak to children directly in separate sessions (i.e. without their parents present) about their wishes and feelings in order to give them a voice in the process.  This mediator will then feedback on their views to both parents (with the child’s permission) and the parent’s mediator.

It can be very helpful for a child to know they have a way to have their voice heard.

Is mediation easy?

Not always. Even an amicable divorce isn’t easy. The nature of the feelings and emotions involved makes that almost certain. Mediation requires effort, by both individuals. Like any aspect of separation, it can feel like a rollercoaster at times; you may finish one session feeling more positive than your ex, and that might flip by the end of the next session, as different topics are explored.

But long term, it is often a far healthier route for separating couples and families. Like any healthy lifestyle, it can feel like hard work at first but the long-term benefits make the effort worthwhile in the end.

Read more articles by Stacey Nevin.

About Stacey Nevin

Stacey Nevin, an associate in the Family & Divorce Law team at Kingsley Napley LLP. She works on cases involving all aspects of family law including maintenance cases, private children cases and relocation cases.

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Mills v Mills spousal maintenance decision

Kingsley Napley Comment on Mills v Mills Spousal Maintenance Decision

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Stacey Nevin
Stacey Nevin
Associate in the Family & Divorce Law team at Kingsley Napley LLP.

Spousal maintenance is a thorny topic.

Traditionally English law has recognised the concept of maintenance for life on divorce, with the breadwinner (male or female) expected to support the financially weaker party.

Recently however there have been a slew of cases suggesting this principle is falling out of favour and in practice there are often moves by the financially stronger party to achieve a clean break divorce if possible, or to limit the scope of maintenance payments rather than sign-up to open ended awards.

That is why all eyes were on the conclusion of the long running Mills v Mills saga this week which went all the way to the Supreme Court.

The Supreme Court had been asked to consider whether the court was entitled to decline to increase Mrs Mills’ maintenance payments to fund payment of all or some of her rent when her housing needs had been catered for in the original divorce proceedings.

Mr and Mrs Mills separated in 2000 after 13 years of marriage, divorcing in 2002.  At the time of their divorce it was agreed that their now adult son would continue to make his home with Mrs Mills.

The parties reached agreement on the financial claims between them, with Mrs Mills taking a total of £230,000 of the net equity of the family home (approximately 91%) and receiving maintenance payments of £13,200 per year.  The husband kept the parties’ shares in their surveying companies and £23,000 of cash from the sale of the family home.

Mrs Mills’ maintenance award did not include provision for rent, as it was anticipated she would use her capital award to purchase a mortgage free property.

Even though it was accepted by both that she had no ability to raise a mortgage, nevertheless later in 2002 Mrs Mills purchased a house for £345,000, raising the balance on mortgage.

What then followed was a series of property transactions where Mrs Mills “committed herself to borrowings which were too high”.  

These are neatly summarised in the Supreme Court’s judgment, but ultimately the result was that by the time Mr Mills applied to court to stop maintenance payments in 2015, Mrs Mills was living in rental accommodation, had no capital and debts totalling £42,000.

Mrs Mills cross applied, seeking an increase to her maintenance award, as she now had rental costs which had not been factored into the original award.

The decision of the first court saw the order remain at the rate of £13,200 per year with both parties’ applications failing. Both appealed, and in the Court of Appeal, Mrs Mills successfully argued to increase her maintenance to £17,292 per year, which included her shortfall in her rental payments.

Whilst Mr Mills was not permitted to appeal the decision that he should continue paying maintenance, he was given permission to appeal the decision to increase the maintenance award to cover the shortfall.  The Supreme Court allowed his appeal and effectively restored the maintenance to the 2002 amount.

The judgment makes clear that Mrs Mills’ housing needs had been catered for within the original capital award given to her in 2002 and that Mr Mills should not be expected to bear the consequences of his ex-wife’s poor financial decisions over the last 16 years.

Whilst these cases remain fact specific and the Mills v Mills decision does not totally bar future claims being made due to the court’s wide discretion, it does give us a strong indication of the law in this area.

Spouses seeking to increase their maintenance award to meet a need that was already catered for with a capital award face a tough test. Even though it was accepted that Mr Mills could afford to pay at the higher level and that Mrs Mills had a greater need, it was not considered fair that he should meet this greater need.

The question of fairness will play a key role in future cases looking at this point.

What paying parties may find disappointing about this case is that Mr Mills remains obliged to pay his ex-wife maintenance, even at the original level.  Mr Mills has now been paying maintenance for 16 years, three years longer than the parties were married and living together.

The question of how long maintenance should be paid remains unanswered and fact specific.  No doubt, the Mills v Mills case will be an incentive to those wanting to push for further change in the area of spousal maintenance. Many argue that a lifelong maintenance payment obligation is outdated and patriarchal and that the law should support financial independence between divorced couples.

For the moment the message is clear: whilst Mrs Mills is not required to move to full financial independence from her ex-husband, she must now meet her increased housing costs herself and cannot look to her ex-husband to meet her needs generated by the choices she has made; responsibility for these choices rests solely with her.

About Stacey Nevin

Stacey Nevin, an associate in the Family & Divorce Law team at Kingsley Napley LLP. She works on cases involving all aspects of family law including maintenance cases, private children cases and relocation cases.

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parental alienation example

Parental Alienation – The Example we Should all Learn from   

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STACEY NEVIN
Stacey Nevin
Associate with
Kingsley Napley LLP

Occasionally, as a family solicitor, I come across a case that makes my heart sink.

That feeling overwhelmed me when I read the recent judgment of the case Q and R (Intractable Contact), which can only be described as an extreme example of the serious issue of parental alienation.

Parental alienation is a concept recognised by an increasing number of lawyers and psychologists. In simplest terms it arises when a parent manipulates the child to show unwarranted fear, disrespect or hostility towards the other parent.  Not only does it damage a child’s relationship with the other parent, it can have a detrimental to a child’s mental health in the longer term.

For an estranged parent undergoing separation or post-divorce, it might be tempting to seek to turn a child against their ex. The acrimony from a split can so easily spill into the parenting arena, over parenting styles, behaviour and influences.

The danger zone is reached when the criticism is so repeated and effective that the child starts to believe and take as their own the negative images of that parent and in turn becomes self-sabotaging of that relationship.

There are a number of reported cases that have dealt with complaints about parental alienation, where the alienated party seeks to restore their relationship with the child. 

Whilst most judgments recognise the importance of the child having a healthy relationship with both parents, there is no statutory principle that protects this.  Sometimes the damage has already been done, as was the case in Q and R.

Q and R had the unfortunate effect of vindicating the mother who, it seems clear, was the engineer of her children’s wrecked relationship with their father.

Historically there had been a violent attack on the mother by the father, and it is of course possible that this motivated some of her actions later on. 

Yet despite psychologists finding that the father had dealt with his anger issues and that the children would benefit from contact with him, the mother did not accept those experts’ views, even after contact had taken place successfully.

She flouted court contact orders repeatedly and influenced the children to such an extent that they no longer wished to see their father and actively feared him.

In the end the judge reluctantly made an order for indirect contact only, stating this was in the children’s best interests. She justified her decision as the better course than inflicting a further cycle of litigation on the family and because the children would have rejected anything else.

To have ordered contact between the children and their father would have caused them anxiety and distress, such was the false belief system imposed upon them by the mother. 

The judge described this as a “running into the road case”; where the children expressed such strong views that they did not wish to be with their father, they might put themselves in harm’s way if made to see him against their wishes.

We can only hope this is a one off and not a precedent setting case.  Certainly parents guilty of alienating should not take it condoning this behaviour – the judge was highly critical of the mother – or of establishing a new norm.  

The overriding lesson is that those parents who feel they are on the receiving end of sabotaging behaviour should act early to avoid things getting to an impossible stage.

Bold and drastic measures in the early stages of a contact dispute can feel unreasonable and disproportionate, however this case demonstrates that the longer circumstances to on, the more difficult it can be to get things back on track.

For parents who can’t help but criticise their ex in front of their children, this case is a stark reminder to do better. 

Both parents have one common denominator; a child or children stuck in the middle whose present and future welfare lies in the balance.

About Stacey Nevin

The author is Stacey Nevin, an associate in the Family Law team at Kingsley Napley LLP. She works on cases involving all aspects of family law including private children cases and relocation cases.

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