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GAZETTE
APRIL 1986
Where all issues are on the table for negotiation he
divides the mediation sessions into three specific tasks
which are:
(1) Budgets:
Each party completes a budget sheet handed to
them by the mediator. The mediator then focuses
on closing the gap between what the couple have
and what they need as separated spouses. They
can then explore:
(a) Ways to cut down on needs; and
(b) Ways to increase available income.
(2)
Assets
of the marriage are discussed, understood
and evaluated. Mediation will be terminated if
there is not full disclosure of assets and income.
The mediator asks "what is fair" prior to the
distribution of assets. Interestingly, experience in
New York shows that most couples at mediation
consider a fifty-fifty division of assets to be fair.
(3)
Parenting:
Here the mediator bears in mind, that:
(a) parents make their own decisions and are the
best judges of what is right for their children;
(b) The mediator is not an advocate for the child;
(c) Where the mother has custody, the father's
role in parenting should be maximised;
(d) The child is entitled to a share to both
parents — No child should ever lose a parent.
Through the process decisions are reached by the
couple themselves, solutions are not imposed by the
mediator.
At the end of the process the mediator drafts a
'Memorandum of Understanding' which sets out all
points of agreement reached by the couple and the
reason for reaching these decisions. The couple are then
advised to take the memorandum to their respective
solicitors to have it formally incorporated into a legally
binding deed of separation.
Solicitors who practise in the Family Law area should
not see the development of the 'mediation' technique by
non-lawyers as a 'threat' on their legal domain. In the
appropriate case — which hopefully would mean most
cases — the solicitors for both husband and wife should
consider whether there is sufficient consensus to
encourage both parties to attend a mediator, as a way of
avoiding the potential
'bloodletting' of" court
proceedings and of enabling the parties themselves to
reach agreement, which could then be incorporated in a
deed of separation by the solicitor.
•
* Mary Lloyd is a solicitor with Family Law experience and is also
a marriage counsellor, and a trainee mediator.
C o mm e n t . . . .
(continued f r om p. 107)
satisfactory than other methods (particularly the
judicial process) of resolving marital conflict.
If the mediation process is to work successfully in this
country, as it has in others, and if the legal profession is
to play its due part in achieving this result — which
should be in the public interest — then, in marital
disputes which are being mediated, lawyers may have to
re-educate themselves, not on the law, or on the advice
that is given to clients, but on the lawyer's approach to
the problem. In some cases, it may be found that the
long term interests of all concerned, including the
particular client, may be best served by the client
making some concessions or accepting some particular
obligation or duty.
This may mean that the lawyer's most natural
concern on behalf of his client, to make the best bargain
that he can in the client's interest, may need to be
tempered.
The lawyer would, of course, have to ensure that,
whatever bargains the client himself (or herself) may
make is entered into with full knowledge of the legal
consequences and how and to what extent the bargain
may diverge from the strict legal rights and obligations
of the parties.
How lawyers adjust to and co-operate with this new
development while at the same time look after the
real
legal interests of their clients will demonstrate how
'caring' a profession we really are.
•
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