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Family Mediation where there is a power imbalance.


Many divorcees are not making use of family mediation because there is a power imbalance between themselves and their ex-partner resulting in concerns that mediation would not be suitable for them. However, this article explains that mediation is still an option, even when there is a power imbalance.


With court proceedings, relating to financial matters on divorce, now taking on average more than 18 months to reach a final hearing*, the incentives to resolve disputes outside court have never been so strong. There are a growing number of options for divorcing couples to help them achieve a settlement without resorting to a court application including negotiations through solicitors, the collaborative process and arbitration. However, family mediation remains the most used option. Despite this, in the recent Nuffield Foundation report; Fair shares? Sorting out money and property on divorce  it was found that only 11 percent of divorcees who had not instructed a solicitor and 28 per cent of those who did have a lawyer even attempted mediation.

The primary reason cited, in the Nuffield report, for not engaging with mediation concerned a lack of ability to negotiate with their ex-partner. A significant number of divorcees that chose not to engage in mediation did so because they were worried that there was a power imbalance between them and their ex-partner that would make it impossible to negotiate within a mediation setting.

Therefore, the question then needs to be asked; “is mediation suitable where there is a power imbalance?” If family mediation cannot offer assistance to those where there is a power imbalance, are they resigned to more expensive and time-consuming options of resolution, such as court proceedings?

There are many reasons why power imbalances can arise such as when there has been domestic abuse in the relationship or when one party has a better knowledge of the financial circumstances than the other, perhaps because they run the family business or have always taken the role of sorting out the finances within the marriage. However, even in these circumstances mediation can still be suitable and the best way to resolve the dispute. It is the job of the mediator to carefully assess the suitability of mediation, they will start this off within a Mediation Information & Assessment Meeting (MIAM) with each party before arranging a joint meeting, above all making sure mediation is safe. During these meetings the mediator can begin to explore how any imbalances might be redressed.

For mediation to be successful it is important for the mediator to help ensure both participants have the confidence to understand the financial landscape and negotiate freely. They must make sure that mediation is not being used by an abusive partner as a means of continuing that abuse. Where there are imbalances present, the mediator will help address them and can do so in a number of ways. For example:

  • Online mediation – some participants may feel more comfortable engaging in mediation if they are not sat in the same room as their former partner.
    • Shuttle or hybrid mediation – participants can be in separate rooms, with the mediator “shuttling” between them. This can help participants feel more confident in putting forwards their concerns and proposals. With the hybrid mediation model, those separate meetings can be treated as confidential which helps participants feel more comfortable in expressing themselves and asking questions.
      • Using Financial Neutrals – where one or both parties do not have a comprehensive understanding of some of the financial circumstances, particularly where there might be complex financial assets such as businesses, pensions, trusts or overseas assets, a neutral financial expert could attend mediation meetings to help explain the value of the assets options for how those assets could be used within any settlement and tax consequences. Having them present allows for questions to be asked and options explored and ultimately empowers both parties to make decisions that they understand the financial consequences of.
        • Lawyers joining the mediation – the parties can bring their lawyers into the mediation meeting enabling them to have the support and advice of their legal advisor throughout the meeting. When solicitors are involved, it often gives participants the confidence to discuss options and put forward proposals, helping to address any power imbalances.
        • At Lupton Fawcett we offer a flexible approach to family mediation and regularly incorporate the above options to help support divorcees in reaching a settlement that is fair and works for them and their families, avoiding the need for long and expensive court proceedings.

          Richard Buckley is a Senior Associate Solicitor and a Family Mediation Council Accredited family mediator. If you have any queries in relation to the family mediation services, then please contact Richard: 0114 228 3293 or Richard.Buckley@luptonfawcett.law.  


          * The Financial Remedies Court – The Way Forward report 2019 reported the average length of financial remedy proceedings to final hearing was 84 weeks.

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