The Gazette 1986

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:

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. •

(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.

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