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Mediation flaws

  • Blah
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21 Feb 08 #14653 by Blah
Topic started by Blah
I think there is a flaw in the mediation process and I can only attribute it to the fact that there is a want to gain money out of the process.

In the process you are guided by firstly your solicitor and then the mediator. So the first meeting comes and goes and you fill out form E.

Great you think ! and then you go to the next meeting not really knowing what is going to happen (I would think for most people this is a one off experience) but in the hope that there is a resolution going to be gained.

So you go into the meeting(£250/hr) to discuss a 30 page document. Your supposed to take it all in and review the details. Not that it could have quite clearly been disclosed and looked through in your own time a week before the meeting.

Also although there was certain things we were asked to look at there was nothing fixed. From my experience now I would say that almost all settlements revolve around 3 things spousal maintence, split of equity/ assets, pension.
There could be more of a frame work set for this and for you to come back to the following meeting and get a fixed proposal. This isn't done it is just left for you to flounder with what the outcome of this intial meeting.

I know you might say each case is different but I would guess there are more simularities between each case than differences.

This ambiguity and lack of disclosure does not help the process infact I would say it hinders it to the point that it can cause a break down.

I am now disputing what my EX2B has come up with in mediation because of these very facts. She is now saying that I am coming away from the agreements that had been set in the meeting.

I have had no choice as looking at what had been set it was not against the true facts. This could have been erradicated before the meeting and we could have discussed the real issues.

This has now left a misstrust of the mediation process for both me and my EX2B which has TBH not made things any easier.

So in conclussion why can't the form E be disclossed in advance of the mediation meeting, why can't a frame work be set.

I have been involved in the court process to some degree and most disagreements turn on one point as mine does. Which solictors are well aware of. We are also dealing with educated and supposedly experienced people who are supposed to have our best interests at heart. Do I feel like that NO.

I would not go into a business meeting or court without being given the relevant information to review.

So why when I am in a meeting about deciding the finances for the rest of my life am I asked to go in blind. I feel cheated about mediation it could be so much more. It is just a cash cow for solicitors like everything else.

I hope I can stop my settlement going to court but in my case i might have already failed.

  • DownButNotOut
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23 Feb 08 #14845 by DownButNotOut
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There really is no set procedure for mediation.

It is a very general approach to dispute resolution.

But I do agree it would make sense to be prepared in advance of the meeting.

In fact it makes sense to me that you read each others form Es and have quite a bit of discussion before mediation.

And get to the point where you have a list of 'issues' which need to be resolved by the mediation session.

That way you have a clear agenda and focus the mediation meeting itself directly to addressing those specific matters that are in dispute.

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23 Feb 08 #14852 by attilladahun
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There is validity in what Blah says

If you look at the Court process there has to be mutual disclosure -it is the same with the Ancillary Relief Protocol -fair disclosure underlines the principles of fairness and family law generally.

The rules in Court also provide that before an FDR both parties have to make proposals

Similarly before the final hearing both parties have to make OPEN proposals and the Court Bundles have to contain position statements that is a document with nails one's case to the mast

Now Blah is right there cannot be fairness in attending meetings "blind". May be it would be better for the parties to have the form E detail disclosed and the mediator act as a quasi Judge and on paper before the meeting indicate what extra information should be gathered as a minimum. Then there should be a sort of position statement/offer made at least 21 days before the before an actual meeting is held in an attempt to sort things out. This would give some time to consider the "WORKABILITY" of the offer made -lets face it people may need to check mortgagibility ie how much they can raise.

If a stepping stone approach was made people would know where they are -any missed step entitles the other to apply to Court and File Form A -as an inducement to the process rules could be introduced which provide that a defaulting party ultimately has to refund the Form A fee of £210.

A mediation timetable for Ancillary Relief could be:

[1] Request for mediation is made by either party which encloses an agreement to use best endeavours to mutally exchange a completed Form on a date 6 weeks after the agreement is received from the other party in writing.
That request will confirm Form P pension information has been sent off and other mandatory documentation ie mortgage statement, bank statements, policy information is either available or being obtained.

The notice will state a value of any properties and list 3 valuers so when the other side receive the mediation notice the values can be agreed. If not the parties have to agree a joint valuer to value any propertiy BEFORE a mediation meeting can take place.

[2] The other side will respond within 14 days which returns the agreement to use best endeavours to mutally exchange a completed Form on a date 6 weeks after the agreement is received from the other party in writing.
That response will confirm Form P pension information has been sent off and other mandatory documentation ie mortgage statement, bank statements, policy information is either available or being obtained.

The response will state a if the value of any properties is agreed and if not state which of the 3 valuers is to carry out the joint valuation.

A mediation meeting can only take place where the valuation is agreed, a joint valuation obtained or the Mediator states there are "special reasons why" the meeting should proceed before a valuation is carried out ie affordabity or some other reason ie structural/problems with the property.

[3] Once Forms E are exchanged by sending a copy to the Mediator who will copy it to the Other party then resonable questions for information are prepared within 14 days of Mediator sending form E out and the standard time to answer these is 1 month from receipt.

[4] The other party has 7 days from receipt to object to any Questions and the Mediator will identify within 7 days what is/not reasonable to answer.

[5] If documents (which are reasonable and proportionate to the issues -no fishing expeditions allowed!!) are requested in addition to the mandatory documents to be attached to form E a signed written authority of that party is supplied so the questioning party can get the information at his or her own expense.

[6] The Mediator will fix a meeting for a date 8 weeks after the last form E is received

[7] The Mediator will cancel the process if either party is more than 21 days behind a deadline.

Now I know many will say mediation should be unlike a Court regulated process but I agree with Blah unless there is a structure where parties feel some control/guidance is given regarding the disclosure process the whole system can be unfair and one sided.

May be the Mediator at the first intoductory meeting asks the parties to attempt to bring the mandatory docs for form E with them and identifies what is missing and completes authorities for each to sign with Forms P etc so both know on day 1 what needs to be send off in an attempt to get the information required -that way a reluctant and devious party will be identified and the Mediator will advise the Court process is really the only option in that event.

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25 Feb 08 #14983 by Blah
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Thats all great, and it all makes simple logic dosn't it.

I am not highly educated person and I can see this after 2 meetings. Surely the very people (mediators)who are sitting in these meetings day in day out could have quite easily come to the same conclussions.

They must see where things can fall apart. Maybe thats what they want though thats my feelings. :angry:

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25 Feb 08 #14987 by Blah
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I personally though, do not want to give up on the mediation process as the court cost will be horrendous.

I am unsure as to what will happen next if I still want to carry on with mediation and my X2B says differently.

Will she be driving this now and I will just have to sit back and wait ?

  • Fiona
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25 Feb 08 #14991 by Fiona
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mediation can only work when both parties want it, although it's not uncommon for things to look bleak only for the position to be reversed when both parties have had time to reflect on the situation.

JMO. I thought that when people asked for or agreed to mediation it was because the strategies already tried had not helped resolve the dispute so the philosophy was to start with a clean slate so to speak. It costs more but I think collaborative law has more potential to resolve financial issues, although mediation is a good forum for child related issues.

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28 Feb 08 #15237 by Blah
Reply from Blah
Alright attilladahun has set out some reasonable suggestions.

I would like to see some one who is involved with the mediation process

1)defend the current position.

2)Let us know why the cost is so high.

3)Review what has been said by attilladahun and give some feedback.

I think the lack of any deffence just shows what mediation is there for.

I have also found this document which I think also shows how mediation as a process isn't working

www.dca.gov.uk/pubs/reports/ch6.pdf

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