Today we are talking about ADR versus court. Is it always wrong to go to court with your divorce settlement, or is it sometimes actually a good option? Our guests are Sushma Kotecha, Katherine Harding and Victoria Richardson.
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Sushma Kotecha
Sushma practiced family law for over 27 years in the UK having qualified as a solicitor in January 1994.
She dual qualified as a mediator with the ADR group and achieved an outstanding evaluation from her assessors in April 2010 and gained accredited status to deal with all issues family mediation (both children and financial) in December 2015 via the Family Mediation Council and continues to hold accredited status.
Sushma is passionate about people and enjoys being in a profession that allows her to help couples in conflict during one of the most traumatic and difficult periods in their lifetimes.
Throughout her career, she has worked for various local practices in the East Midlands and gained invaluable experience and knowledge in dealing with a wide range of clients who came from all walks of life. She has always been committed to a holistic and non-confrontational approach to resolving family disputes. Her last employed position was Managing Partner at the Nottingham office for a leading national specialist family law firm, Stowe Family Law.
In March 2021 she took a leap of faith and took the decision to give up a successful career in family law to focus on her passion and calling to help couples in conflict resolve disputes out- of-court. Her aim is to promote and encourage a holistic approach to divorce and separation, which family mediation offers to separating couples (when mediation is assessed as safe and suitable). It is a kinder, compassionate approach to separation and divorce. Hence the birth of ‘Holistic Family Mediation’ on 1 July 2021 – an online private family mediation service.
Sushma brings personal insights to her service being a divorcee herself as well as her professional background and experience as a family lawyer. She can fully empathise with her clients and understands first-hand just how painful and traumatic separation and divorce can be.
However, she is of the firm belief that divorce does not have to be so bitter, toxic and twisted. We all have a choice as to how we navigate these testing and turbulent times. Her mission is to flip the script on divorce and to inspire and empower separating and divorcing couples to take stock and make their own informed mindful decisions with a view to having a positive impact on them, their children and future generations.
Sushma is currently a student of the ‘Holistic Life Coach and Mind-Body Practitioner Diploma’ and now offers holistic divorce coaching services as an alternative service to clients who prefer to work with her on a one-to-one basis to not only survive after separation and/or divorce but to go on and thrive!
She is also the author of her recently published book - ‘Holistic Divorce: Shi*t Happens, It’s How you Deal With It That Counts’- a self-help book for separating and/or divorcing couples to empower and inspire them to stay in control and out of court - promoting a kinder, compassionate, holistic approach to divorce and separation.
Katherine Harding
Katherine is an associate in the family law team based in London. She acts for clients in all areas of family law, including divorce, financial disputes, private law children work and injunctive proceedings. Katherine has gained very considerable experience in complex international cases, with extensive work on numerous domestic cases.
She also has experience in cohabitation matters and pre- and post-nuptial agreements, exercising discretion and sensitivity in high profile cases. She has assisted on matters in the Family Court, High Court and Court of Appeal, as well as matters which have settled collaboratively without the need for court intervention. Leading counsel has commented: 'Katie’s confidence, strategic vision and legal skills are outstanding, and far beyond her PQE. She has that rare ability to win the confidence of any client. Hard-working and tenacious, she really is a credit to the Penningtons Manches Cooper team.'
Katherine joined the family law team in September 2019 after completing her training contract with the firm. She is a member of Resolution and sits on its Working Together Committee. Katherine is also a member of the Association of International Junior Advocates (AIJA) and represented the firm at the annual conference in Singapore in August 2022.
Recent work highlights
- Successfully represented an Anglo-Australian ultra-high-net-worth client in children proceedings concerning an international relocation.
- Acted in a complex Anglo-Egyptian divorce involving unusual jurisdiction and factual issues.
- Acting as the lead associate in several cases involving parallel criminal proceedings, and where there are allegations of serious abuse or controlling and coercive behaviour.
You can contact Katherine here: katherine.harding@penningtonslaw.com
Victoria Richardson
Victoria is the head of the family law department at Aticus Law, Wilmslow, having over 20 years’ experience in the area of family law. She specialises in all aspects of family law including divorce proceedings, the resolution of complex financial settlement agreements, dissolution of civil partnerships, children disputes and pre-nuptial agreements. Victoria is a true advocate of resolving matters as amicably and as quickly as possible. She is known for her straightforward and honest approach whilst always offering assistance and support to her clients. You can contact Victoria: victoria.richardson@aticuslaw.co.uk
Tamsin Caine
Tamsin is a Chartered Financial Planner with over 20 years experience. She works with couples and individuals who are at the end of a relationship and want agree how to divide their assets FAIRLY without a fight.
You can contact Tamsin at tamsin@smartdivorce.co.uk or arrange a free initial meeting using this link. She is also part of the team running Facebook group Separation, Divorce and Dissolution UK
Tamsin Caine MSc., FPFS
Chartered Financial Planner
Smart Divorce Ltd
https://smartdivorce.co.uk
P.S. I am the co-author of “My Divorce Handbook – It’s What You Do Next That Counts”, written by divorce specialists and lawyers writing about their area of expertise to help walk you through the divorce process. You can buy it by scanning the QR code…
Transcript
(The transcript has been created by an AI, apologies for any mistakes)
Tamsin Caine 00:06
I am today we are talking ADR versus court. In the podcast episode, we're going to talk about whether it's always the wrong thing to do to go to court with your divorce settlement, or if sometimes it is actually a pretty good option. So I'm gonna waste no more time and over to the podcast. Hello and welcome to the Smart Divorce Podcast. I'm Tamsin Caine I will be hosting today. I'm a Chartered Financial Planner working for Smart Divorce. And I'm joined by three fabulous experts in the divorce world with me today. And I'm going to let them introduce themselves and tell you a bit about what they do. So welcome Sushma your first time on the Smart Divorce Podcast. Thank you for joining me,
Sushma Kotecha 01:01
Oh, bless you this It's my pleasure. And my background, I think many will know I used to practice as a divorce lawyer for about 27 years, gave that up over lockdown to set are set up an online holistic family mediation practice. Currently, I'm also doing a diploma in holistic coaching and Mind Body practitioner. So I'll be launching holistic coaching as well shortly. So that's me, I'm looking forward to this session.
Tamsin Caine 01:28
And fantastic bit of everything going on with you. And we should just say that you've also just launched your book as well. So
Sushma Kotecha 01:36
Oh, thank you, Tamsin absolutely, holistic divorce out there now.
Tamsin Caine 01:41
Fantastic, lovely. And Katie again, a first time run smart divorce podcast. Thank you for joining us.
Katherine Harding 01:49
Morning. Thanks for having me. I'm Katie Harding. I'm an Associate Solicitor in the Family Law Team at Penningtons Manches Cooper, my practice across the whole breadth of family law issues, safer public law. And I'm very pleased to be speaking on podcast today.
Tamsin Caine 02:06
Fantastic. Thank you. And I was gonna say almost an old hand. Vicky Richardson. Thank you for joining me today.
Victoria Richardson 02:18
Morning Tamsin and morning ladies. Yes, my name is Vicky Richardson. I am the partner of the Family Law Department in Atticus law in Cheshire. And I have been practising for it'll be by server anniversary this year. So another excuse for a party?
Tamsin Caine 02:36
Oh, yeah, definitely. Well, any excuse for a party pretty much, isn't it? Yeah, yeah. So today, we're going to be talking about ADR, and whether they solutions via ADR are always right, or whether sometimes caught is the right thing. So I'm going to start with you, Katie, and asked you to tell us a bit about ADR and what it is.
Katherine Harding 03:06
Yep. So ADR stands for alternative dispute resolution. And encompasses lots lots of different ways for couples to resolve the issues between them when they're divorcing. And the idea is that it keeps, it keeps everything out of the Court essentially. So mediation is probably the biggest form of ADR, which I'm sure we'll talk about a bit more later. There are other methods as well. So there's Collaborative Law, there's arbitration. But there's also a sort of hybrid where we do it quite often, or I do it quite often in my practice, where we might issue court proceedings in order to instigate a court court timetable. And that's particularly helpful at the moment, given the delays that the court, but we might run and sort of non court process in parallel. So we might have parties going to mediation alongside that. Because there's nothing preventing you from reaching an agreement outside of court, even if proceedings are ongoing. It's just the benefits of kickstarting the court process is that it puts a timetable in place. And that's quite helpful. I think, for clients to give them some structure, it gives them a goal to work towards. There's no obligation on them to see that process all the way through to a final hearing, which can be quite a scary thought. And it also gives them the time to engage in some discussions separately with a mediator for example, if if they want to, yeah, I'm sure. I can talk lots more about mediation and exactly how that works, because I think that probably is the main form of ADR that, that people will have in their mind when they're thinking about non court dispute resolution.
Sushma Kotecha 04:52
Yeah, absolutely. And, you know, I've got I've got to agree that quite often, you know, even within the mediation process, when clients can start At least to me, as opposed to coming through a lawyer, you know, we do actually have a discussion about, you know, what are the benefits of actually having an application issued alongside dispute resolution? And you're absolutely right, because of the delays in court. There are benefits. And I'm quite often saying it's not it shouldn't be considered draconian, you know, if you have that timetabling in place, and actually you then have I guess, more competence in the dispute resolution process as well, because you both know, that if you're not going to be engaged, fully committed to this, the fallback is the litigation process. I mean, the the vision or the mission, of course, is to stay out of court. And the benefits, you know, I would say it's not not just lessening the legal costs, I'm always talking about the emotional costs. I mean, those are far greater when we're in the litigation forum. Right. But I will say that, in my view, 25% 30% cases actually going to be suitable for dispute resolution, because of the extenuating circumstances. And I think before we started this session, we talked about, you know, couples feeling, I guess, a sense of guilt, or, you know, we failed, because we've not managed to resolve this outside the court forum. But what we want to sort of share with those that are listening is actually it's not a failure, because in certain instances, you know, for example, if the severe concerns about transparency in financial cases, you know, in the in the mediation forum, I'm not going to carry out a forensic analysis, or have, you know, the powers to make any sanctions. In those cases where there's a severe lack of trust and faith, of course, court is going to be the right approach. And likewise, where there's severe concerns regarding welfare, safeguarding issues for the children, or severe domestic abuse, which is insurmountable, I can't manage or, you know, the power imbalance in those circumstances, it's not always going to be a bar. But you know, there are a number of cases which have to go down that litigation route. So yeah, you're right mediation ends up being the star of the show, because I guess the way the system operates is that the parties have to, unless they're exempt come for a mediation information assessment, meeting with myself, but I do, you know, give the broad spectrum. And actually, in some instances, I have wholeheartedly encouraged arbitration or collaborative because of the parties. So
Victoria Richardson 07:14
I'm a very big fan of arbitration, and certainly, alongside the court process. So I don't know whether you've done this, Katie, but I have on a number of cases, instigated court proceedings in order to focus the parties on a timetable. But that has then been an agreement that because we're going to wait so long for the STLR, which is the financial dispute resolution hearing, that the parties will go to arbitration, and then they have been fined up to the arbitration process, whereby the final decision is binding anyway. And then we have we corporated that into a final consent order as part of the financial proceedings. So I think it's important to know that even though you go into the court proceedings, it doesn't stop ADR being a possibility. And certainly at the moment, you know, we can wait in Manchester, six to nine months for for an STI hearing for a financial dispute resolution hearing. And during all that time, the parties are waiting, it's emotional, it's stressful. And I think the waiting time in London is as much as 12 months for put hearings. So the advantages Well, in that situation of using ADR, I arbitration are just they're just vast from a monetary, emotional, stressful point of view.
Katherine Harding 08:30
I think I've definitely noticed that Vicky, and you know, the waiting times a huge a huge in London, huge backlogs. But what what I've seen, probably more than arbitration. And I would say most of my cases, at the moment, follow this route is that people end up paying to have a private FTR. So they pay. I mean, it's not I wouldn't say it's sort of ADR in the you know, classic sense of the word. But it's, it's where parties pay to have a judge basically to, and they can have that soon at the FDR much sooner by doing that. And again, a huge benefit of that is if you're paying for a judge, but usually the cost is split equally between you. And you're already more invested in the process, because your money's in it, you're paying for this judge to give you a whole day of their time to give you an indication about what the right settlement is in your case. So it's it's a great way to do it. It's unfortunate that people are in that position where they're actually having to pay for a service that should be provided via the courts. And I appreciate that it's not an option that's available to everybody because of the cost but it is a great alternative. And I would say the majority of financial cases settle at that private hearing or or shortly thereafter. And actually One great thing about mediation running alongside that process is you don't have to try and resolve all of the issues in mediation, you can even just try and narrow the issues so that there are fewer, between you makes the whole settlement process. It just makes it so much easier. And you know, it takes the heat out of things a bit as well.
Sushma Kotecha 10:19
Yeah, you're absolutely right. Because quite often, it's like, then we mediation, they'll be these discrete issues, that there's no way there's a huge impasse, and obviously, I don't have the powers then to jump in and make a judgement or, you know, a call on it. And then those stages, I'm highly encouraging, you know, either arbitration, remember, that gets the benefit of arbitration is, if both parties are willing, of course, there's got to be willingness, it takes two to tango, there will be this legally binding outcome, right? And whereas the alternative caters to what you're saying, as opposed to what what Vicky was sort of advocating is, you know, that is absolutely brilliant as well. It's like an alien Neutral Evaluation with a private FDR, but I guess in those cases, one party may still not, you know, take on board, what that judges said, is in terms of the possible outcome, and so, I guess, you know, it's, it's just weighing up the pros and cons and what works for the parties. But the good thing is that we're all recognising, it's not a one size fits all. And in fact, you can collaborate and work and, you know, go with the flow and just, you know, experiment in sort of test out with clients, what may actually work for them, depending on their financial circumstances, of course, because all of these options that we're talking about dispute resolution comes at an additional cost. But I guess we don't want to forget the fact that going down the litigation route, doesn't necessarily make it any cheaper or emotionally, you know, less bearing, because we know with the delays, inevitably, actually those costs are going to be a lot higher than perhaps paying for an early private resolution through arbitration or, you know, Early Neutral Evaluation or indeed within the mediation forum.
Tamsin Caine 11:53
Absolutely. Can that Vicky, can I just ask you, because just thinking in terms of that most of our listeners are new to this process and may not have a clue what FDR is, could you just run us through what the court process looks like and and what an FDR actually is.
Victoria Richardson 12:14
I was actually comes in about to say that we're all talking in very legal terms, very conscious that people will be saying, What on earth are they talking about? So in in a fairly basic form, either party can apply to the court for the court to become involved in the resolution of financial proceedings. After having whether the case is suitable for mediation assess that one party can make an application to the court. The court then issues directions, which puts the case on a timetable, whereby both parties will exchange financial disclosure regarding their financial position, the court will have a hearing called the first directions appointment to see any whether any further information is needed. And then the court will list the case for what we call an SDR and which is what we're talking about. Now. By the time we get to an SDR hearing, both parties should be fully aware of what each party phase or the matrimonial asset valuations manager may have been obtained with regards to valuation, the property's experts reports in respect of businesses, so ultimately, the court should have a full position of what the matrimonial assets are. The SDR or the financial dispute resolution here and give it its official term is a hearing whereby it's an attempt to resolve matters at that stage. And the idea behind it is that the court, the judge who's hearing the matter in court, will be able to assist the parties in relation to any issues that they have. So the applicant will put forward their case to the judge, the respondent will put forward their case, and the judge loses that time to tell the parties that if he was dealing with it as a final hearing that day, he or she would say this is how I would look at it. And the past is used that information from the judge to then go about back out of court, and the A's to their lawyers or through each other to financial settlement. Very successful. A lot of cases do settle at that point. Because ultimately, if it doesn't it then progressive to a final hearing, whereby the judge will just hear evidence from the parties and make a final decision for them. And that's from a legal point of view as well. And for a party country, that's when your cost really can escalate between the STR and the final hearing. So the all important hearing from the financial proceedings point of view is the FTR hearing. And a lot of people are just focused on that. As I said earlier, there are massive delays in the court. So part of can be waiting six to nine months. There's nothing to wait for an STR hearing. And if all the information is available, and you're just waiting for a judge to give their emphasis on a settlement, then that's when alternative VR comes in. You can drop out to arbitration whereby you are not A judge to give a final decision which is legally binding, or you can agree to just go to mediation, or you can pay a judge quite often barristers to sit at a private FTR, whereby you step out of the court system and have a very, very similar FTR hearing in an independent place. And the barrister or judge at that hearing will give the same indication as you would a court process. The difference between as Catherine, as Katie said earlier, arbitration, the parties sign up to accept that decision, as private str is just an indication, the parties still don't need to accept it, both of which have cost but both can be very successful in their own way. And I think, you know, each plus, it's very much depends on the parties and whether you think arbitration or private FTR is suitable some, some parties need arbitration, some parts of the finality and need to sign up for that final agreement, or there's just an indication will help.
Sushma Kotecha 15:59
No matter what it really depends on the personalities, isn't it and how much trust and faith they've got in each other. So exactly. So come back to the point of what's going to suit their needs. But yeah, from my experience back in the days as a family lawyer that really used to work well. And in fact, most of the cases would settle in at FDR, wouldn't they or, as we said, through these other options that would go for I mean, it was very rare, certainly, from my experience, to have to go down the full full Trial Route, unless we had those very difficult cases where we needed to get to termination. So...
Katherine Harding 16:28
I think sort of going through the you know, having to go through the full court process from beginning to end should really be a last resort for parties if possible. I think it's a bit of what you said earlier session, or about it being very personality dependent. But I think one thing people should bear in mind, about going through the whole court process, and just doing it purely that way, is all the decisions ultimately, are taken out of your hands more or less, especially if you get bingo, final hearing stage, you've got a third party judge who doesn't know you who doesn't know the ins and outs of your family who's just got factual, financial information before them, or you know, if it's a children case, they they've just got the evidence that's before them, they don't know how your family works. And they're going to come in, and they're going to dictate how you're going to split up your money and how you're going to fund your lifestyle going forward, or, or where your children are going to spend their time. You know, whatever it might be. And I think for some people, that's probably what they need, you know, if they if it's a very contentious divorce, and there isn't a lot. Yeah, I think, you know, that's probably a better solution for them, they probably need someone to come in and help them. But I think for a lot of people, they can have those relatively sensible discussions with the assistance of others, mediators and lawyers and things along the way. So that they get to determine what, what the outcome is not somebody else,
Sushma Kotecha 18:01
totally agree with you, 100%. And actually, I was thinking that that you know, the benefits of actually just staying in control of the outcome. And I always highlight that in mediation, whichever dispute resolution option the parties may go for, that is one of the key benefits. And I will always say, you know, Katie, what you've just said, Do you really want to give the decision making power over to a bench of magistrates, or a district judge that doesn't know you, or your children, I know, it knows about your circumstances, this is going to allow you to stay in control, and it's just empowering them and just keeping in check, you know, what they are doing, by perhaps going down what I mean, they might be being egged on by some people, you know, you've take take him out to coat and take them to the cleaners, but they're not actually thinking logically. So, again, coming back to the emotional side of it, you know, quite often I'm also, you know, trying to engage them with other, you know, holistic support, counselling, therapy, coaching, because it's very important when they're coming into lawyers, or indeed, in any dispute resolution forum, that they're managing and regulating their emotions so that they can actually think logically and not be you know, sidetracked or sideline to go down a different route. Because staying in control is so important, you know, especially, you know, when it's in relation to our children, we want to make decisions for them. And that's what we're here for, aren't we, we have to take parental responsibility. And that's what I'm always encouraging. And again, there's lots of tools and resources for the children arrangements that I will always find post them often as well.
Tamsin Caine 19:23
It strikes me as a as a non lawyer, kind of looking in from the outside that this process this divorce process, unless you get all the way through to a final hearing, or you choose to go to arbitration essentially, this is a negotiation all the way through. So whether you go to mediation or whether you use solicitors or use collaborative or even even go through the court process to an FDR, there is going to be some sort of negotiation and it is about how soon you come to to a decision Are there ways that you've found in your practices to make that negotiation happen more smoothly or easier for the people who are going through it?
Katherine Harding 20:13
One way to do that is I think, first of all, as lawyers, we have to bear in mind that our clients aren't just dealing with the practical aspects of this, they are dealing with the emotional side of it as well. And we have to be very, very aware of that we are not dealing with that. And we have to not lose sight of of the burden that that is upon upon them. So I think sometimes, getting the right support in place outside of us is really important. And I know, Tamsin, we've answered, some have we spoken about it in our separate resolution group about the needs to sort of have a divorce team around you, whether that's the support of a therapist, or a divorce coach, or, you know, someone advising you about your money and how to deal with it, once you are divorced, that kind of thing, I think that's really important. And it helps, I think it, it covers all bases for the clients so that they can then when it comes to the negotiations around the finances, for example, they can sort of put on their, their commercial hat, to deal with that deal with it a bit more like a business transaction that's sometimes held. Whilst they've still got the emotional support from the relevant people in the background.
Victoria Richardson 21:30
I think I think you're right Katie there about emotion, you know, our clients being emotional. And it's very important for us to remember that a lot of my clients will say to me, and I'm sure you probably get the same, it's not the mediation process. It's not even the go to court. It's the and then of the mediation point of view, having to fit. And there's different forms of mediation, but basically having to sit in the same room as them and discuss, you know, the issues that probably led them to separate in the first place and try and leave the emotion out the door. Because I presume that's very difficult for you at some time to try and help the parties reach a point where they can chat about it objectively.
Sushma Kotecha 22:10
Yeah, absolutely. So just coming on to that point that yeah, that that is the key. The key is that, you know, when when couples are separating, and I guess that's the whole, you know, for me, the book is come out on holistic divorce is sort of remind people, it's not just about your legal rights and responsibilities, actually, you know, when, when you are facing divorce and separation, we have to look at it holistically, you know, mind, body, spirit and soul and the emotional side of it is psychological perspective is so important. And even when they're in mediation, you're right, we're carrying out a risk analysis a safeguarding check. And, you know, I've kind of coined the term, from my own personal experience that divorce is a living bereavement, divorce and separation. So you're going through the cycle of emotions, that you will do any facing bereavement, although you have closure there, you have a loss rights, a burial in divorce, you don't. And so I do have to look at where the parties are, and in quite often the the best will in the world, they might want to mediate, but emotionally, I mean, I had one of those cases just recently, you know, on the face of it, there were no red flags, this would have been a safe and suitable case, mediation, but one of the parties were so emotional, there's no way they could deal with this. And I was signposts and say, look, at the moment, this is not the right time to be dating, because you need to, you know, regulate your emotions. And that's where counselling, coaching, you know, psychotherapy comes in. And so, as lawyers, we've just been so mindful of where are they, along the journey, can they think clearly are they, you know, making irrational decisions. So it's having that holistic approach, which is really, really important and getting, as you said, the right team around me, but sadly, not everyone can afford that, right. But there's lots of tools and resources, so many tools and resources, you know, even if you can't afford it, you know, just coming back to looking after mental health and well being, you know, getting in touch with Mother Nature breathwork, you know, doing yoga within your own household. And these are simple tools and resources that I try and share with people to to say, look, look after yourself, before you start jumping in down the legal route, you know, and so yeah, I kind of agree that it's kind of just taking that holistic approach to, to what what our clients are going through. It's not an easy road to travel.
Tamsin Caine 24:21
Absolutely. And there's, I think, an important thing to say about that, is that, yes, not of course, not everybody can afford to have a full team of people, but sometimes it can be lower cost in the long run, to have the right people around you and helping you to make make the right decisions as you go along rather than rather than going all the way to a to a final hearing and, and through that without the right support in the background.
Victoria Richardson 24:52
I was just thinking, actually, with regards to ADR and these serious delays that we're having at the court at the moment and Are majorly as they weren't great before COVID. But certainly as a result of COVID, that's what we're suffering from ice. As I said previously, you could be waiting for six to nine months for an STR hearing, that's really frustrating for the parties when everybody's ready to go. My view is that in a certain extent that has helped and developed other forms of ADR because I can now sell it to parties. Look, you're gonna wait six, six months to have this hearing in front of the judge? Why don't we have a private SDR, whereby you can get that information from a judge in four weeks time and might hopefully reach settlement or even go off to the arbitration track and have it thought is so much sooner. So I think, you know, in a certain extent, these delays can help us in a positive way. Whereas previously, I think once the parties are in the court proceedings, they were stuck there. And they were just tunnel vision towards the hearing, or you will get the hearing date through much more quickly. So I think that is one positive thing from COVID. If there has been any.
Sushma Kotecha 26:02
Yeah, yeah, it's one of the Silver Linings that I agree, I think there's definitely more push towards a dispute resolution. And actually, I'm I don't I don't know, whether it's because of the connections I've got within the legal world. But you know, I do find that, you know, people would have thought, well, you're crazy. During lockdown, you're given up, you know, your dream job setting up this mediation service. But yeah, I found that, you know, work has been coming in, and it's increasing. And I do think that's timing and where we are in the world with the backlog in a chaos in the court system, that previously, lawyers may not have wholeheartedly encourage dispute resolution, but now they're recognising you know, we've got to work together in a more collaborative fashion, creative fashion, because that is in our client's best interest, you know, being stuck in delays is not serving anybody, you know, not the parties, not their children, if it's children, because, you know, that's really having an adverse impact on on their emotional, psychological well being. So yeah, I agree with you, Vicky, I guess Katie would, would also agree with that.
Katherine Harding 27:04
I do agree. And I think what you said there about having to work together, it's really important. And it's it's also worth worth bearing in mind when you're you're going through a divorce, is that it's not just it doesn't have to be just one or the other. So I know I said that the very, very beginning. But I, what I what I wanted to make the point about really was that if you are mediating, you're not mediating in a vacuum. So you can come back to your lawyer, and you can tell them about your mediation discussions, all of which are our confidential discussions that that you're having. You shouldn't feel pressured to commit to anything in mediation. And you can speak to your lawyers about, you know, perhaps once you've exchanged the for me, which we refer to earlier, which is a long document, whereby you each exchange your financial information, so you can work out what's actually in the marital pot to be divided. You can go back to your your lawyers, perhaps once you've exchanged that in mediation, to see whether there's any other questions that you need to raise, or whether any experts need to be instructed to provide a report on perhaps how pensions need to be divided, for example. And then you can go back to the next mediation session, progress things a little bit further. And then again, come back to your lawyer, perhaps talk about settlement discussions that you've had in mediation, so it all kind of, you know, like Susan was saying about it being a holistic experience, I think that's a really important point for people to understand. It's not just one or the other. Everyone should be working together. So you're not sort of flying solo once you're in mediation and expected to figure everything out by yourselves.
Sushma Kotecha 28:50
You know, it's wholeheartedly encouraged in all mediators should be saying, you know, selling money, what, you know, when it comes to disclosure, like we mirror what lawyer led negotiations do or what a court would expect. So, you know, you could only do financial mediation if there is that voluntary agreement to exchange disclosure. But you're absolutely right, there is always a push, go and take financial advice, go and take, you know, legal advice before the next session, because you want to be informed, because you can only make decisions that are going to serve you and your children. If you're going to take some additional support from those who just said the group of other people around you, whether it's your financial planner in it, sometimes there's your financial planner, your accountant and your lawyer, ultimately, and because then they can come back armed with that information and then they can then take the dialogue further. So yeah, it's always encouraged and I know I will work with mines is a private service, but there are sometimes families who can't afford to, you know, take advice throughout the process, but there are certain interjections I'll say, okay, you don't have to formally have a lawyer on record. But from time to time, it's gonna be so important that you do you know, and now nowadays, you don't have to have you on record fully, because I know that we can have those practices. where, you know, they'll come and see you as and when they need to, like pay as you go, you're not for me on record for them, but they were in the background. And so I encourage that. And again, in terms in in terms of, you know, what you offer, you know, financial planning and guidance on, you know, the net impact of any proposals, it's so important for me as a mediator to flag that up, that that is a tool, that's a resource, and it'll be invaluable, because then you know what this means to you, because the net outcome, and also putting your money where your mouth is all well and good making proposals, but if you can't actually follow them through, so that's where we will kind of fit in. And so it's just sort of given that, you know, guidance to the clients so that they can then hopefully, make their own decisions. And then, you know, at the end of it in mediation, as we all know, there's no legal outcomes, that's when they come in Back to the lawyers to have, you know, court orders prepared to ratify and get that finality get that closure.
Victoria Richardson 30:50
Absolutely. I have had parties as well, in cases whereby I've attended mediation, and the other party's lawyer has attended mediation, and we've had around the table mediation session, and managed to reach an agreement that way, because I quite often find so many clients save me, can you come with me? Can you come with me? And I'm like, No, not at this stage. But maybe later down the line, I can and just, you know, when they get to a certain point, quite a lot closer, feel better, they have the solicitor there with the mediator. So the whatever decision is potentially reached, they can discuss this with their solicitor before actually agreeing to it. And I think that is very useful as well.
Sushma Kotecha 31:26
I think that's the hybrid model that you're talking about hybrid mediation. And so there are some mediators who have gone on and taken on that additional, I guess, string to their bow, I haven't I haven't gotten to that stage, at this stage of my career. It's something that I may think about doing. But again, this is why it's so important to know what you need as a client. And I make it very clear from the outset that I'm a traditional mediator minds is the traditional model, I don't offer shuttle mediation. I don't offer hybrid. But if that's what you're going to want, then, you know, there are other services out there. And so, Vic, it's good to bring that up to the audience's, I guess, knowledge that, you know, if they are looking for a dispute resolution, option, mediation, there are different ways and hybrid does work. And it's long as they've got, I guess, the financial capacity, because that's quite often people come into mediation because they're trying to keep the costs down. And so I guess, if they're including their lawyers, but there are plenty of cases and clients where, you know, money is no objective. And actually, it's going to serve them to go down that route. So well, to point out,
Tamsin Caine 32:23
Absolutely, there's just one thing we are, we're getting towards the end of our time together. But there's just one thing that I wanted us to talk about, because it's something that is often asked of me when people come to see me and we've talked about the fact that this process is negotiation unless you get all the way down to the final hearing goal or through to arbitration. And that's entitlement. So as in what am I entitled to? Some who there's a wry smile from be ladies now, I'm gonna pass this to you, Vicky, because I feel like you're gonna have something useful to say.
Victoria Richardson 33:08
think before I answer. I think the first question, the main question that myself and Kato are always asked in initial meeting with a client is what you're gonna get, what am I entitled to? Oh, she's going to take me to the cleaners. And listen, similar to that, really. And our stock answer will always be I don't know yet, because I don't have all the financial information, but years of experience will give you an idea of which way it will go. And you know, and until we know what the financial situation is from both parties and what's in the matrimonial part, we can only then discuss, discuss what your quote entitled to, unquote, as we, as we prefer to call it a reasonable settlement.
Katherine Harding 33:53
I suppose very broadly speaking, very, very broad brush is that a starting point would be that there'll be an equal division of the matrimonial assets. But there are lots of factors that might influence whether that falls, you know, one side or the other 50%. And, you know, some of those factors are, how long you've been married for, for example, or, you know, what your needs are, as opposed to the other person's needs, for example, there are there are so many things to think about. But as Vicky said, until you've actually got some kind of disclosure, in front of you, it's very hard to say, you know, it's very hard to assign a figure to what to what that's going to be. And I mean, that's the financial side, there's also the children's side, because I get lots of clients coming in saying, you know, are the children going to have to spend 50% of the time between us, are they going to have to split their time equally? What's it going to look like? And that's a slightly different answer, I think, because that's very much led by what's in the best interest of the children and that's, that's how I court would approach it, that's their paramount consideration. And that's how we have to look at it as well. And how any sort of third party that's involved in that sort of decision should be considering it. So that that becomes very subjective, every child is completely different. And what that child needs is completely different. And we have to work with our clients to understand their children a bit and what their needs are, to come to some sort of sensible suggestion as to how their time should be divided, and you know, where they're going to live and who they're going to spend time with.
Sushma Kotecha 35:36
Yeah, I agree with both of you in terms of, you know, what you've just said, is the starting positions in relation to both, you know, finance and children. And within mediation, of course, all mediators have to bring to the participants attention, the backdrop of the laws. So, you know, quite often we will start off by looking at the section 25 criteria in relation to what the courts will look at in relation to finances. And that's, again, I forget, or the audience or thing which talked about the Matrimonial Causes act 1973, which, of course governs finances. And with children proceedings. Yeah, I will always talk about, you know, the heart of the children act 1989 is, of course, you know, what's gonna be in the best interest of your children, and ultimately just encouraging them to sort of dig deep and really put themselves in their children's shoes, as opposed to what mum would like what dad would like, they're not a commodity, you know, I have to make that very clear, this whole talk about, you know, 5050 split, even that terminology, I'm kind of sort of trying to reframe that and say, you know, you can have a shared caring place, it may not be an equal, you know, time, what's going to work for little Joey, you know, so it's basically putting ourselves into their shoes and being very mindful of what's going to serve them financially. When we say, don't we the, you know, English law, there's a huge wide discretion. I mean, that's why people come here to the UK, there's no formula attic approach, or it's very complex. But there are, as you say, you know, once we've got the full disclosure in place, various factors, that one or the other can put forward to the court to move away from that initial starting position of have an equal share of the assets, because about meeting their fundamental needs, first and foremost, to have to households a starting point. And then if there's excess, of course, they were looking at that.
Katherine Harding 37:17
I think it just also in terms of the children's side of things, there's also child inclusive mediation session where you probably could talk a bit more about this than I can, but where as a specially trained mediator will speak to the children as well, so that they're they feel involved in the process, and their views can be taken into consideration more directly rather than us or just assuming what the children what we think that children want. And I it's not something I've come across a lot so far, and I don't hear a huge numbers of child inclusive mediators around but it is, it is an option
Sushma Kotecha 37:56
it is. And again, we're encouraging or we've been asked to sort of encourage and promote that to those couples who have got children, I'd say 10 years plus, because that's the typical age of third the child's voice to be heard within the mediation process. And it's kind of trying to mirror and I guess, take away some of the slack from the court. So you know, wishes and feelings report that the welfare officer would do within it within the court proceedings, I guess it's trying to mirror that through a child inclusive mediator, again, I've chosen not to, you know, take on that additional string to my bow, but I, you know, can and do know of mediators who offer that service, and where it's required, I will, of course, co work with a mediator who can see the child and then bringing the child's views to the mediation forum, how that works in practice is both parents, firstly, go to consent. Quite often, that's where the downfall is one parents saying, you know, reason why remediation is is that I want us to take responsibility, I want I don't want the kids to be engaged in this, I want us to sort of focus and try and deal with it. So that's why it's very it from my experience, very rare. You know, I've only I think, from my experience, since I've been a mediator, there's been two cases. And that was earlier on in my mediation career about a decade ago, where we had challenges for mediation, right. But there is an option, you're absolutely right where the child's voice can be heard. And it can be invaluable, you know, because quite often, that's what both parents want. You know, you're saying one thing, I'm saying one thing, and then it's like, well, actually, let's hear from our daughter or my son, and have that, but again, the child has got to be in agreement, right? You can't just say to a child, you're going to have a session with a mediator so that the child inclusive mediator in an appropriate way will make contact with the child. If the child is then wanting to have their voice heard. It's a separate, you know, private confidential session with the child and the mediator. They're not going to reach any confidences and sometimes for my for my understanding of charting because of mediators, children will like to you know, offload or, you know, explain to the third party neutral, how they're feeling, but they don't actually want all of that going back to Mum and Dad. So, you know there could be scenarios where not much has been fed back to mom dad because that mediators got to hold confidence right? But it is an option.
Tamsin Caine 40:10
Ladies, thank you so much we have sadly come to the end of our time together already. And thank you for joining me. Your contact details are all in our show notes. If anybody wants to get in touch with any of you I'm sure that you will be delighted. And thank you for listening today and hope you can join us for our next episode. I hope you enjoyed the episode of the Smart Divorce podcast. If you would like to get in touch please have a look in the show notes for our details or go onto the website www.smartdivorce.co.uk. Also if you are listening on Apple podcasts or on Spotify and you wouldn't mind leaving us a lovely five star review. That would be fantastic. I know that lots of our listeners are finding this is incredibly helpful in their journey through separation divorce and dissolving a civil partnership. Also, if you would like some further support, we do have Facebook group now. It's called 'Separation divorce and dissolution UK.' Please do go on to Facebook, search up the group and we'd be delighted to have you join us. The one thing I would say is do please answer their membership questions. Okay, have a great day and take care!