In this blog, I will provide an outline of the process that you would go through in mediation for finances.
Setting the Agenda
To ensure that the mediation focuses upon what matters to you, we start with a discussion about:
What you need to make choices about; and
What is important to you when making those choices – your hopes and fears, your needs and the challenges that you face.
Financial Disclosure
Before the first mediation session, we will ask each of you to complete a Financial Disclosure Booklet.
The form will ask you to disclose your:
Assets (e.g., property, savings, investments, and the like)
Liabilities (such as credit card balances, overdrafts, bank loans, family borrowings)
Pensions
Income (from all sources)
The Booklet does not ask about what you spend (or are likely to spend) your income on. If spending needs become relevant to your negotiation, we may ask you to complete a separate budget form.
The information in the Financial Disclosure Booklet is ‘open’ and can be used in court process if you are unable to agree choices in mediation.
Examining the Financial Information Together
An important task – usually at your first joint session – will be to go through the two Financial Disclosure Booklets together.
As we go through the booklets with you, we add the information to a schedule. As the information is examined, differences in your understanding of the facts will become apparent. We explore together how any differences can be resolved. This may mean producing documentary evidence or, occasionally, commissioning an expert valuation of an asset.
After the session you will receive a Post Session Note which will, among other things, list any additional information that you may need to share.
Open Summary of Facts
When all of the relevant information is available, we prepare an Open Summary of Facts. You will each be asked to check and approve this and then to sign it.
The Open Summary of Facts will be your main information resource. If you ask a solicitor for advice, they will need to see the Open Summary of Facts as well as the Post Session Notes from your mediation sessions. We usually share the Open Summary of Facts and Post Session Notes with the solicitors at the same time that we share them with you - this will help your solicitor to advise you, and save cost.
The Negotiation
Equipped with the facts, and information provided by your Family Mediator, you will be able to identify options and make choices, leading to the development of an overall plan.
If, for any reason, you are not able to come up with a plan, neither of you will be permitted to tell a court about any of the negotiating positions taken by either of you.
The Protected Summary of Proposals
When a plan has been identified by you both, your Family Mediator will draw up a document setting out the proposals. We call this a ‘Protected Summary of Proposals’ (some mediators call it a ‘Memorandum of Understanding’ or a ‘Confidential Summary of Proposals’). The word ‘Protected’ is a reminder that this is not yet an agreement – not yet binding on either of you.
Taking Advice
Before you finally commit to a plan, you should each take independent advice. This will usually include legal advice. Then, if you confirm to each other that you are ready to commit to your plan, it will become binding upon you both.
The Protected Summary of Proposals and Open Summary of Facts should, between them, provide the solicitors with sufficient information to give you the advice that you need.
Court Order
In almost every case, it will be necessary to ask a Judge to approve your plan. You will not have to attend court – the lawyers will submit a draft order to the court together and the judge will check and (almost always) approve it.