Why mediation works well for HNW divorces

Lauren Evans, partner & family mediator, Kingsley Napley, 18/01/2023

HNW divorce does not need to mean an expensive, adversarial court process.

Mediation offers HNW families an opportunity to find their own solutions in a constructive way that is aimed at preserving co-parenting relationships. 

Our team have mediated HNW cases with international issues, family trusts, business assets and complex tax issues. 

The mediator’s role is to build a bespoke process for each couple.  The focus is on collaborative problem-solving. 

One of the advantages of mediation is that it is possible to bring a couple’s professional advisors into mediation meetings, including company accountants, wealth managers and IFAs, so that the couple can consider financial projections and make informed decisions during the process, whether that involves tax considerations, pension or estate planning. Some couples also include their lawyers in the mediation process.

Mediation does not just work where a couple are on good terms. It can still be used effectively in cases where couples have found it difficult to discuss and resolve matters to date.

The point of mediation is to bring clients together with a neutral, professionally trained expert to reality-test options, on a without prejudice basis, to find solutions that work and can later be made binding by the court. 

In contrast court can be a blunt instrument, imposing an outcome that may not meet with clients’ expectations, leaving one or both parties feeling dissatisfied, particularly when it comes to finances.

There are other advantages to mediation.

Privacy is an obvious one since mediation is completely confidential, with both parties, the mediator and any advisors who participate signing up to a Mediation Agreement, which sets out clearly the confidential nature of the meetings. HNWs or couples in the public eye find mediation helps them to retain control over when things are announced, both within the family and more widely, and avoids the risk of potential media glare.

The timescales involved are increasingly attractive compared to being subject to the longwinded and stressful delays currently affecting the Family Court. When successful, mediation almost always provides a quicker resolution than a court process.

Furthermore, the agenda is tailormade to the couple or family in question, whether that means sorting out finances or children issues or both, and it can help clients move forward because they have both signed up to the outcome themselves (rather than having a decision imposed upon them).

There are various other private, non-court processes such as collaborative law, arbitration and private FDR (financial dispute resolution) hearings.

However, in Mediation Week (16-20 January), it is right we highlight the considerable benefits mediation has to offer.

Couples separating in 2023 should at least explore its potential, speak to mediators about the process and, if court is being considered, not simply view the MIAM (Mediation Information and Assessment Meeting) which is required before starting the process, as a tick-box exercise.

Mediation is sadly not right for all, but where it can be explored, couples and their advisers may find the process highly constructive.

And mediation is not just for divorcing couples – it can be used before a marriage or cohabitation to agree the terms of a prenuptial or cohabitation agreement; during a relationship when big changes concerning children or finances are on the horizon and putting strain on the couple; or by those who are considering separating, but haven’t made a final decision

Mediation sets a constructive tone, and provides a space to talk, for example, about how to tell the children their parents are separating.

Of course, some issues may simply not be capable of agreement, but for me even then mediation is still the best place to discuss what other non-court options might work, to make another plan that builds on the progress already made. 

Conversations in mediation can cut through days and weeks of email tennis and set the right tone for other dispute resolution paths – in the immortal words of Bob Hoskins: “It’s good to talk”.

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