23rd Jan 2020

Using mediation to discuss separation finances

“It’s not about the money, money, money…” – well it might not be for Jessie J, but the reality for most people is that it has to be. There is rarely an easy answer when you have previously had all of the family living in one house (funded by either one or two incomes) to living in two separate houses with two sets of expenses and perhaps additional childcare costs arising from that.  And that’s before you get on to tricky questions like who can stay in the house and who has to move out. Or what about debts? Or what about the pension that only one person had been contributing to?

Mediation is a space to understand your finances and then work out the best option for dividing them fairly between you. In that sense, mediation isn't any different to any other process that you might engage in. I stress to my mediation clients that mediation is not a soft option. Just as if you were to engage a solicitor, use collaborative law or go to court - the process always starts in the same way. We can't work out how to divide up the assets and the income if we don't know what all of the assets and the income is. So disclosure (posh word for pulling all your financial information together) takes place fully in mediation and it isn't a place to hide away from that financial frankness.

One of the benefits to mediation is that there is scope to discuss finances much more fully and make sure that no aspect is left not dealt with. For example, if you're in court, there is a limited number of orders a judge can impose.  Also, things like how the contents get divided fairly or how liabilities are managed may not get much air play.  One conversation that I frequently have in financial mediations, which I think is overlooked in a litigious process, is providing for what happens if one of the parties were to die, particularly if there are children involved.  What happens then to child maintenance that was being paid if that parent dies? What happens for a working parent if the other parents is non-working and dies whilst there are still young children?  Although there might not be a child maintenance obligation to cover from the estate there is still clearly a financial impact. Most separating couples that I work with, regardless of how much they are at each other throats, are always agreed on one thing. They want to protect whatever they have for the benefit of their children in the future and that can all be discussed and planned in mediation.

Financial mediation really works.  But don't take it from me.  As an insight, here’s a case that I worked with a few years ago now, where the parties had been separated for some time. There were children from the marriage who were coming up to being adults.  Dad had remarried, but Mum hadn't. There was a question about how much mum should have been able to improve her work prospects and increase her income versus when the continued financial support from dad should come to an end. They had already been back to court about this a couple of times.  Thankfully, before a third court application, they came to mediation.   And they reached a mediated agreement. Here’s what one of those mediation clients said:

“I just wanted to write to thank you for your skill and patience and getting us to a sensible mediated settlement. I am particularly conscious that over a years’ worth of sending expensive and adversarial letters between solicitors actually took us very little further forward - whereas three face to face mediation sessions found a solution.”

Sarah Smith is an Eminent Practitioner in Family Law and has been supporting separating couples for over 20 years.

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