It’s the Valentine edition so we should really focus on love but that’s difficult in the context of separating or divorcing couples. Nevertheless, we might consider how these couples could be kinder to each other and avoid the interminable hostile environments we read about (and which many of us) witness every day.

There are now more dispute resolution options open to clients than there have ever been. When we first meet our clients, we provide them with information on what now seems like 101 different ways to approach negotiation. Twenty years ago there was not so much choice. Options were stark. Either you issued financial remedy proceedings or avoided court by going into mediation. Now there is a whole range of options, from collaborative practice through private financial dispute resolution hearings (pFDRs) to arbitration.

As alternative processes have developed, they have tended to focus, like the collaborative process, on providing more supportive environments for clients – which is welcome – but more complex cases do not seem to be referred to mediation in the numbers they previously were. I think it’s time to ask why and to show why mediation should in many cases be high on the list of preferred options regardless of how complex the case might be.

For many lawyers the preferred way forward seems to be to keep hold of the financial disclosure process and arrange a pFDR (whether it is with or without the fallback of a court process). Many practitioners claim to practice alternative dispute resolution by the fact that they are “working outside the court process” and arranging a pFDR. In reality this remains a highly litigious process which still denies clients their own autonomy.

Although the pFDR model is highly effective in many cases and certainly preferrable to the court model, I would argue that it does not qualify as a DR process. Its aim is to replicate the court system but to be more attentive, timely and effective. And of course to add decent refreshments. The lawyers who practice in this way are mimicking the court process and really doing what the court should do itself but is unable to do due to it being under-resourced and unable to deliver the appropriate level of service our clients expect.

Also, far from encouraging clients to work together to try and agree a common outcome, the pFDR is now more akin to a mini trial focusing on advocate submissions with the tribunal then declaring what it considers to be the appropriate outcome. Whilst for many they may be able to reach an accord they will still have endured a difficult experience getting there. Their whole case will have been presented in a litigious way and despite best efforts there will inevitably be constant reference to contributions or conduct which rarely impact on the adjudication. The couple will have been pitted against each other, albeit they may emerge slightly less bruised than if they had engaged in a court process.

In 2020 the Family Solutions Group produced their excellent report [1] and queried how conflicts that involve children and finance could best be conducted. One simple but compelling question asked within the report was whether couples were working together to try and resolve a conflict or whether they were working apart? Sadly the answer appears to be that the vast majority of processes require couples to work apart. Any court process, or one that mirrors it, such as pFDR and arbitration, still requires the couple to work apart and focuses on acrimony and best case positions, rather than seeking compromise or acknowledgement of other people’s situations.

It is trite to say that for most couples, working together to achieve an outcome is a far better method than working apart. Again, it is appreciated that in the current age this may be a more difficult objective. We increasingly listen to voices that validate our own thoughts and shy away from hearing opinions that contradict our beliefs. Listening, acknowledging and accepting that someone else may have a valid point may not conform with the way in which many people live their lives today.

However, we all know that contested processes are damaging, and even more so for the increasingly vulnerable clients we are asked to assist. I would urge lawyers to think first about mediation as an appropriate forum for high net worth couples who wish to move on with their lives, thinking of their futures rather than raking over the disappointments of the past. And avoiding the often cataclysmic damage caused by proceeding through contested processes. With changes to the FPR coming in on 29 April the court will further focus on non court based DR and will want to know what efforts couple have been engaged in to avoid court hearings. Costs penalties may be imposed if a party has been deemed to act unreasonably.

Mediation has moved on considerably in the last few years. No longer are clients abandoned on their own to try and negotiate in an environment where there is inequality. In high net worth cases the client’s legal team are very much part of the mediation process rather than seen as an obstacle to it. Trends have developed so that there is now far more external involvement.

Most popular mediation methods

The two most popular mediation methods are:

Hybrid mediation

This is where clients attend mediation together with their legal advisers and are kept separate from each other. The process is similar to a civil mediation. A great amount of preparatory work will have been done before any meetings and the aim is often to find a resolution on the day, which may mean committing to a half or full day’s attendance.

Sole mediation

This is where the clients work directly with the mediator. Meetings tend to be together, although the clients can be kept separate. Often an ARB1 is signed out the outset so that if mediation does not succeed the couple can move swiftly in to arbitration using the information prepared for the mediation.

It may be helpful to look at how this process might work for high net worth couples as, typically, there is far more involvement from lawyers and professional advisers and follows a different pattern to a standard mediation. A complex case may proceed as follows:

• Clients have individual MIAMs with a mediator where the range of processes are explained and safeguarding is considered.
• The mediator meets (virtually) with legal advisers to discuss how the case can move forward, agree disclosure requirements and timescale.
• Following disclosure, initial joint meeting with clients, an outcome summary and asset schedule are prepared by the mediator and shared with all necessary advisers.
• If required, a follow up meeting with the mediator and legal advisers is held to deal with any ‘follow up’ requirements for disclosure and preparation of proposals.
• Further meetings with clients and any relevant external experts where required, accountants, pension experts, counsel for neutral evaluation etc.
• If there is no resolution from direct meetings then a ‘final’ meeting may be held in person with legal advisers present.
• Assuming resolution reached, draft consent order prepared (hopefully a working draft will have been circulated prior to the final meeting) and matters conclude without the need for an MOU. If resolution is not achieved the parties may move into arbitration.

Cases best suited to mediation

Remember the flexibility of mediation means solutions can be found that are not always available in the court system. Examples include:

• situations where the couple accept their relationship has ended but want to continue running a successful business together;
• where the main asset is a trust and monies will only be advanced to one partner if the trust is willing to cooperate. Acting constructively rather than fighting a battle and hoping for judicial encouragement is often a much better strategy;
• where the priority is protecting wealth for future generations and imaginative financial strategies need to be considered;
• any case where dynastic wealth is a feature such as a family farm or a landed estate; and
• any case in which bespoke outcomes are preferrable to the rigid straitjacket of the court.

Hopefully the above summary will give you more confidence to consider mediation where appropriate and to discuss the potential benefits with your clients.

Returning to the Valentine theme, our clients have already discovered that they cannot have eternal love – that is disappointment enough without us adding to their plight. Whilst we can’t turn back time (even Cher couldn’t manage that) hopefully we can at least help them move on with dignity and hope.