The Gazette 1987

GAZETTE

APRIL 1987

do it for you. Anyone starting

mediation, or thinking of doing

so, should be prepared for this."

I then go on to list the ground

rules under which I work, in com-

mon with most mediators. The

main ones, which are set out and

explained at more length in the

Introduction, are:

1. All discussions are 'off the

record'. Since mediation is a

'without prejudice' process, the

content of mediation discussions

should not be referred to in Court.

The mediator will not be in-

volved in any litigation between the

parties, or called as a witness.

The mediator meets the

couple together and will talk to

them separately only if he thinks it

is necessary and they both agree.

(This may make his work harder

than if he kept them apart and

acted as a go-between, but experi-

ence suggests that a go-between

is less likely to produce lasting and

satisfactory agreements than a

mediator who brings the couple

together and helps them to see

their conflicts as problems needing

joint solution.)

It is essential that there should

be full and

bona fide

disclosure of

all relevant information. (This can

be one of the most difficult rules to

enforce.)

The last of my rules protects

the right of both parties to seek in-

dependent advice, particularly,

though not exclusively, legal ad-

vice, during the process.

My document goes on to outline

arrangements with my clients

about fees. I charge clients a fee

per hour and am paid at the end of

each session. If husband and wife

are both earning, they will normal-

ly share the fee fairly, and this may

be both the first time in months

they have agreed anything and

their first step towards agreeing a

total package.

I do not charge a standard hourly

rate, but relate my charge to their

income. I aim not to add to the

financial crisis that faces most

separating couples and at the same

time, since mediation should be a

brief process, to charge enough so

that they are not tempted to stick

with it too long. I also want to

receive a not too derisory reward

for my services.

My document then continues:

Making it Work

"We will start out by trying to

identify the areas of dispute.

Financial support; where you

will each live; continuity with

your children when you are no

longer sharing a home; and how

to divide assets, are among the

topics we may spend time on.

We will look at each topic in

turn, understand the issues, and

see what you each need and

whether you can reach agree-

ment on it.

" If you do reach agreement, it

will be a barga in that you both

find acceptable. That means that

you will have avoided getting

"It is much harder work to

negotiate your own agree-

ment; with or without help,

than to leave it to lawyers

or others to do it for you.

Anyone starting mediation,

or thinking of doing so,

should be prepared

for

this."

into a situation, as in the Courts,

where there must be at least one

loser.

" In our work together we will

focus on the future, not on the

past. Each of you may feel very

strongly that the other is to

blame for what has happened in

your lives, and may want to tell

me about the other's past

behaviour. Try not to. It is no

part of my job to judge either of

you, or to apportion blame. It is

part of my job, as I see it, to help

the two of you to move on, and

to focus on your future lives,

and I will discourage recrimina-

tions about past behaviour, and

discussions of past events,

unless they seem to me relevant

to the present and the future.

"What you actually agree in the

course of mediation, or even if

you fail to reach any agreement,

is up to you. I may make sugges-

tions, but we will be talking

about your future lives, and the

lives of your children, and it is up

to you, and only you, to make

decisions in what you think are

your interests, and theirs. These

will be your decisions and it does

not matter whether I might have

made different ones, in your

place.

How long will the process

last?

"Between four and eight ses-

sions is normal. Either of you is

free to terminate at any time,

and if I think you are not going

to be able to reach agreement,

and that you would be wasting

my time and your money by con-

tinuing, I will say so.

" I t isn't always possible for a

couple to reach final agreement,

that can last indefinitely. For ex-

ample, if they have young

children, changes, both in finan-

cial arrangements and in "paren-

t i n g " , may have to be

negotiated from time to time. A

couple who have gone through

mediation may be able to handle

re-negotiation without help, but

will be welcome to come back to

mediation if they get stuck in

their re-negotiations.

The end result

"If agreement is reached on all

the issues we discuss, I will

prepare an informally worded

note of it, for your approval.

Most couples then ask their

Solicitors to draw up a formal

agreement, incorporating the

agreed points. Indeed, this may

be essential, especially if further

documentation is needed, or if,

for example, a house has to be

transferred into a different

name, or sold.

"The piece of paper that you ap-

prove and bring to your lawyers

is the tangible result of your

work. I hope you may gain an in-

tangible result, as well.

"This is an improved understan-

ding of your own and each

other's needs and wishes, some

acceptance of the situation,

somewhat less negative feelings

towards each other and an in-

creased ability to look to the

future, and get on with your