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What are we each entitled to in our divorce settlement?

What does the law say about how to split the house, how to share pensions and other assets, and how much maintenance is payable.

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The four basic steps to reaching an agreement on divorce finances are: disclosure, getting advice, negotiating and implementing a Consent Order.

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A Consent Order is a legally binding document that finalises a divorcing couple's agreement on property, pensions and other assets.


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Solicitor advices against mediation

  • What next
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05 Jul 09 #128943 by What next
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Thanks everybody for taking the time to reply. At a time like this, dealing with situations like this it is great to have the opportunity to ask other, more experienced, people for their thoughts. I'm not sure yet but tending towards following the solicitor's advice and going straight for a hearing.

Thanks again,

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  • nbm1708
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06 Jul 09 #129023 by nbm1708
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Try to also remember that there are a large number of solicitors who do not want to recommend mediation and collaborative law as a first port of call when a couple split as they would be putting themselves out of work.

There are some solicitors who actually do encourage acrimony and parties not to speak and deal with each other because it means greater fee's for themselves.

My ex has ended up with fee's of around £45k because of it and the destruction it's caused to the childrens lives is immense. The demands from her side because so great that I was forced to go to final hearing and I was representing myself.

The judge finally intervened in December and explained yet again to them that negotiation meant that we were to meet in the middle of both offers not for her side to keep increasing their demands which was for periodical payments to cover her monthly legal bill as she's taken out a divorce loan to cover it.

The end result even with all this legal representation only gave her a 55/45 split and the periodical payments they fought for don't even cover half her legal bill.

There is no goodwill whatsoever in view of everything thats happended and I have everything from her put in writing as I do not trust her because of all the tricks and threats of the past 18 months from both her and her solicitor.

T

  • Fiona
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06 Jul 09 #129039 by Fiona
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He explained to me that the mediator (known to him) would not be able to offer legal advice and that he had not dealt with one case where mediation had come up with a satisfactory result.

In most cases, apparently, work had to be done by solicitors to sort out the mediated agreement and in some cases the whole process had to start again from scratch.


I think there is some validity in the comments. However, the problem with the conventional advocacy is each party's solicitor tries to secure the best deal for their client and that means there is a win/lose situation (or a zero game as game theorists call it) which frequently causes resentment and resistance resulting in big legal bills and unnecessary damage to long term family relations. With mediation there is a win/win (nonzero) approach to resolve matters in a way that can work for everyone.

"Consider divorce. A good marriage is obviously a nonzero sum game, brimming with mutual cooperation. But even when it breaks down there are all sorts of reasons why a couple could benefit by continuing to cooperate, and treating their divorce, too, as non zero sum. As if child welfare were not a sufficient reason, the fees of two lawyers will make a nasty dent in the family finances. So obviously a sensible and civilized couple begin by going together to see one lawyer, don’t they?

Well, actually no. At least in England and, until recently, in all fifty states of the USA, the law, or more strictly-and significantly-the lawyers’ own professional code, doesn’t allow them to. Lawyers must accept only one member of a couple as a client. The other person is turned from the door, and either has no legal advice at all or is forced to go to another layer. And that is when the fun begins. In separate chambers but with one voice, the two lawyers immediately start referring to “us” and “them”. “Us”, you understand, doesn’t mean me and my wife; it means me and my lawyer against her and her lawyer. When the case comes to court, it is actually listed as “smith versus Smith”! It is assumed to be adversarial, whether the couple feel adversarial or not, whether or not they have specifically agreed that they want to be sensibly amicable. And who benefits from treating it as an “I win, you lose” tussle? The chances are, only the lawyers.

The hapless couple have been dragged into a zero sum game. For the lawyers, however, the case of Smith v. Smith is a nice fat nonzero sum game, with the Smiths providing the payoffs and the two professionals milking their clients’ joint account in elaborately coded cooperation. One way in which they cooperate is to make proposals that they both know the other side will not accept. This prompts a counter proposal that, again, both know is unacceptable. And so it goes on. Every letter, every telephone call exchanged between the cooperating “adversaries” adds another wad to the bill. With luck, this procedure can be dragged out for months or even years, with costs mounting in parallel. The lawyers don’t get together to work all this out. On the contrary, it is ironically their scrupulous separateness that is the chief instrument of their cooperation at the expense of the clients. The lawyer may not even be aware of what they are doing." (The Selfish Gene - Richard Dawkins)

It is often necessary to revamp a financial agreement made at mediation because it doesn't translate readily into a Consent Order. However, mediation can help dissipate anger and the fact that negotiations have taken place means there should at least be some understanding of where the other party is coming from. It is a whole lot cheaper to pay one mediator and the couple sit face to face to negotiate than pay separate lawyers to negotiate on your behalf. One option is to choose a solicitor mediator who can guide negotiations with a better knowledge of the law.

Even if a final agreement isn't reached mediation can cover a lot of ground reducing costs and preserving reasonable family relations. If negotiations are not getting anywhere a court application can help focus minds but there is no reason why mediation can't be ongoing and the dispute resolved before the first appointment.

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15 Jul 09 #131639 by What next
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Fiona,

Thankyou for your very comprehensive and thought provoking post.

I understand my solicitors advice about expediting proceedings but I completely understand the benefits for everyone concerned of a less confrontational approach to this whole sad business.

Thanks again, you have given me plenty of food for thought,

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