What is mediation and will it work for our divorce?

Mediator Maura McKibbin

Mediator, Collaborative Lawyer and Divorce Coach Maura McKibbin joins Tamsin Caine to discuss the use of mediation in divorce. They talk about what couples can expect, how it works and how to get the best from mediation.

 

Your Host

Director of Financial Planning and Chartered Financial Planner Tamsin Caine has a strong background of over 15 years within the financial services profession. She began Smart Divorce following her own experience with divorce; she now advises people in the same situation as she once was, enabling them to take back control of their life and finances. Smart Divorce website is www.smartdivorce.co.uk. Contact her by email tamsin@smartdivorce.co.uk.

Special Guest

Our guest today is Maura McKibbin. “Family separation is incredibly stressful and every family is different. My goal is to help you to achieve a good separation, allowing you to stay in control of the outcome and the cost and to stay out of court.

I aim to support parents to support their children as a family adjusts. It is vital to understand your options and to secure information at an early stage so that you can make informed choices.

I encourage a problem solving approach that will help you to tackle all aspects of your separation; emotional, financial and legal. Having been a family solicitor for over 25 years I understand the challenges you face. I am committed to helping you with honesty, dedication, reliability and flexibility. Please do contact me if you would like to talk about your separation.”

Transcript

Tamsin Caine: Hello and welcome to you the smart divorce podcast. This podcast is for you. If you’re thinking of separating, already separated or going through divorce. My name’s Tamsin Caine and I’m a Chartered Financial Planner. We’ll speak to some fantastic specialists who can help you to get through your divorce, hopefully amicably and start your new chapter positively. Now over to today’s guest…

Hi and welcome to today’s Smart Divorce Podcast. I’m delighted to be joined today by Maura McKibbin. Hi, Maura.

Maura McKibbin: Hello Tamsin

Tamsin Caine: Do you want to start off by just telling us a little bit about you and your work background?

Maura McKibbin: Yeah, so I am, and have been for a very long time, a solicitor helping clients who are going through family separation. I spent a long time in my earlier career going in and out of court with families. I reached a sort of professional conclusion about 12 years ago that I wanted to try and help families to stay out of court because I didn’t feel that court was a good place for families to find themselves and particularly parents. So my practise then morphed into its current form, which is really dedicated to helping separated parties, parents, mostly parents, but not always, to sit around tables with lots of support and to problem solve their way through to reach agreement about parenting planning and about their financial separation, usually.

Tamsin Caine: Excellent. We’re going to talk today about the mediation process and introduce people who haven’t been through it yet to understand what mediation is and how it works. So, do you want to start off by explaining how mediation might work if it was your first choice of ways of a method of going through divorce.

Maura McKibbin: Yes, certainly, I think, where separated parties are clear that their path forward is not together. They obviously have a lot of conversations that they need to have to reorganise life. So  if they felt, both of them, that sitting around a table and finding their way to an agreement was what they want to do, either as parents or around finances, then they would meet with a mediator, and they wouldn’t have to have a solicitor when they started the mediation process but they would later on be advised and it would be recommended that they have at least a legal advice to help them to mediate, but they could come into mediation with Mediator. Firstly, they would have a short, separate and confidential pre mediation meeting. Really for them to get to know the mediator and for the mediator to get to understand the things that were a  worry, a priority, to help them to have a better grasp of what mediation is and what mediation isn’t and to help them really assess in a bit more of a detailed way whether a mediation process is a good fit for them. And provided that they both felt that mediation would be a good way forward. Then they would move from there into a formal mediation process. Sign up to an agreement to mediate and the rest of their sessions would be take place jointly with mediator and the first meeting would really be largely about trying to understand what each party wanted to focus on in mediation and then really making a detailed plan about what they would need to go away and gather together looking finances or doing some reading on getting more information about separated parenting. So they would move into planning and think about how they could organise the mediation process going forward and start to have their conversations. And along the way they would need access to independent financial advice, some independent legal advice. They’d need some independent mortgage advice Probably there might be other people. Pensions advice. All sorts of people that might help along the way around by the Parenting Planning, as well as financial separation.

Tamsin Caine: Okay, and what tends to make people suitable candidates for mediating as opposed to going down a traditional route?

Maura McKibbin: I think for parents where they want to preserve a good and positive parental relationship, and that’s a common goal that would help them to reach out and find a mediation process. Staying in charge of an outcome, so not having the uncertainty that’s created by the courts.  Also people wanting to save money and keep money within their family pot on, not loose charge or lose control of how much is being spent. Where people are looking to sort out their financial separation, they would need to have a good enough level of financial trust in each other. So, that doesn’t mean at all that they need to see the outcome as being same. But it would be important that they felt that they could trust each other to produce full and transparent financial information in order to see them begin their conversations in their problem solving. That can be something that bars people out of mediation if one or other felt that that couldn’t be achieved in a mediation process. And they obviously need to feel safe and comfortable to sit in the room together. People can feel very apprehensive about that sometimes. Sometimes that’s a very understandable and usual level of apprehension that comes with starting a new process about very sensitive matters and important matters. For some people, those anxieties are overwhelming and mean that they wouldn’t feel OK to sit in a room together. So obviously, the mediator needs to explore the emotional trust between two people who have separated and also the financial trust between two people separating those will be key things to talk about early on, when the mediator is having these separate meetings with each of the each of the parents or each of the parties.

Tamsin Caine: Okay and do mediators all work in a similar way?

Maura McKibbin: I think mediators broadly follow a similar process or line, so it would be very usual for a separate pre mediation meeting to happen. There are a few mediators that might see people together if they felt comfortable to do that from the beginning. But I think that wouldn’t be the norm and within a financial process, there are certain key steps to follow. Most mediators would follow those key steps. I think, however, that mediators bring to the mediation process, their personality and their way of working and supporting clients. Different mediators will work in slightly different ways, and I think that obviously one of the really key things for people who are trying to assess whether they want to work in mediation is also to assess whether the person in the mediation in front of them feels like a good fit for them and be allowed time to really assess that. So that’s another, I think, important strand of that initial pre mediation meeting, as a client. You’re sitting in a room with someone and you’re able to really ask lots of questions and really get a feel for their personal approach, so their personal approach will be a key factor in how they mediate, I think.

Tamsin Caine: Yeah, that sounds sensible. How should a couple best prepare both practically and emotionally to sit in front of a mediator whether it’s on their own for their first separate meetings or whether it’s together for the first joint meeting?

Maura McKibbin: Emotionally, I think that probably people don’t need to do anything specific emotionally before they have that first separate meeting with the mediator, because part of that mediation meeting, pre mediation meeting, is to really understand how and where people are up to emotionally and how they’re feeling. So if as a mediator, you have a sense that the person in front of you is really struggling emotionally. It might be a very fresh separation, or they might be really stuck somewhere in that emotional recovery journey. And if your sense is that they really do need an extra layer off support in order to be able to sit together and problem solve or feel strong enough or brave enough to mediate, then you can lock that expertise on. You can talk to the person about who supports them. You can explore the possibility of mediation coaching or some counselling support, even, you know, before. You know sometimes for people mediation is the right process, but it’s not the right time, and they need to have some dedicated emotional support in order to be in a good enough place to be able to engage with mediation. So from an emotional point of view, I think that’s something that could be assessed early on with the mediator. The mediator can help to lock on that expertise and support, and sometimes we will need that extra emotional support in the room where mediation is happening. And that’s also an option. On the financial side, again, I don’t think before you connect with a mediator, you need to have necessarily done any preparation work. But again, it’s something we go to talk about at that first meeting. And it might be that the person to help, to try and enhance understanding and get information about finances, is an independent financial adviser. So sometimes, instead of kick starting the process on the joint work with the mediator, people might work at that point, with a financial adviser to gather together the information and importantly understand the information. So it’s very often the case that one person’s got more financial knowledge and sometimes more financial power than the other person, and that can really feel quite unnerving and worrying. So some people, if they haven’t had a lot of experience of the financial side of the relationship, they’re on a very steep learning curve and their confidence levels in the finances of very low and that can get in the way of good progress. So getting the mediating. You know, understanding what the issues are as the mediator and making sure that you’re not just rolling out the same process, come what may but you’re thinking about the real needs of the couple in front of you, the separated couple. I’ve just seen someone today, actually, who’s going to do exactly that. She’s very low in confidence, and she really, really needs to understand what the financial picture looks like and what it all means. It’s not that she doesn’t trust her separated partner, but she really needs confidence boost to enable her to engage. So, you know, I think financially there are things that can be done to help people to prepare if people are more financially competent. They might go away and start gathering together a lot of information and then bring that into the first meeting, so that can be done ahead to try and save money, and for others, it really is that they do need some additional support in order to do that exercise or one of them may do. So you’ve got to be alive to all of these issues early on. And it’s part of your planning with the clients to work out, what do each of them need because they’ll be different in those needs. Emotionally and financially what support you need to put in place and how’s that going to help.

Tamsin Caine: Okay, is it always that people come to you with either financial issues that need resolving or parenting issues that need resolving? Do many people come with both of those things needing resolving?

Maura McKibbin: For lots of people, they need to resolve both of those aspects. Sometimes they can sort out their parenting planning on their own, and they’re looking for help with finance, and often they need both. But the parenting aspects can be much lighter touch, so for mediated, you might because you’re not teaching people to parent. Of course, you’re just highlighting, really information and resources that are going to be helpful for enhancing understanding about separation parenting. So you might be helping with both but your financial support as a mediator might be much more detailed. Whereas the parenting aspects and might be about, might be quite light touch, might be about giving resources, information support. And then parents go off and talk themselves and reach agreements themselves. And many can do that. There are others who, sadly, have experienced such a trauma to their personal relationship as part of separation that they find themselves really unable to talk as parents, as well, and the parental trust levels are very low. For those people, they would need to bring that aspect into the mediation process as well. There are a number of people who might be going through a court process about finance, and that might be the right forum for them but they might think if they’re parents, they probably still need some support and help at some level with parenting planning.  So they could bring Matt into mediation, even though the finances were being dealt with through the court process or some other forum. So it’s really a mix and match and it’s very led by separating parties, and it’s all about what their needs are and then trying to deliver a process that can cater for or help them to tackle those.

Tamsin Caine: It’s complicated, isn’t it? I know that there’s a requirement for couples who go to court to see a mediator before they get to court. Is that right?

Maura McKibbin: That’s right. That’s known as a mediation information and assessment meeting, a MIAM. That’s an information meeting about options and  its court required, you’re absolutely right. The court have put those meetings in place because they were worried that people were going into court or court process too quickly or too easily and sometimes without being aware that they could problem solve around the table or they could use an arbitration process instead of a court process. So it’s about enhancing understanding of different options and allowing the person that’s doing the MIAM and taking that meeting to make a decision about whether courts still feels like an option or whether any of those options could be an alternative way to be helped. And so they are not mediation meetings. I would class those really information meetings about options. So I think the title for them is slightly misleading, to be honest.

Tamsin Caine: Just a bit, isn’t it? Yeah, I thought it was part of that kind of potential for mediation process to help people avoid court. But it sounds like that’s not the case.

Maura McKibbin: Well, it still gives them the option. It can be a meeting that develops into an exploration of mediation, like pre mediation meeting but for other people, it really is about talking through the different options and explain to people that they can tap into those options at any point in time, either before court proceedings were issued. Or indeed, after court proceedings are issued. It’s all about getting information to people, which is absolutely key so that people can make informed choices about how they sort out what they need to sort out.

Tamsin Caine: Yeah, there are so many options available to people, it must be really difficult to know where to turn and which want to to start with. If you were putting yourself in the position where you were, you were heading towards this, where would you begin starting to get information? If if you were right at the beginning of the process and get going through separation.

Maura McKibbin: I think to be honest, I probably would head towards the mediator because a mediator is always going to be an even handed person who doesn’t take sides and doesn’t judge. The mediator can very easily, in that role, deliver different information about options to one person, or sometimes to both people together. So they hear the same information the same time. And then I think people feel more empowered and less scared to have that information available to them. That’s not necessarily how it usually happens. I wish it were like that to be honest, because I think that would be the best way for people to access information in that even handed way. I think traditionally, people are more inclined to jump straight into legal advice separately. It is not, I’m not at all suggesting legal advice isn’t important. It is really important to help people to mediate well. But I think that if you go separately at get advice at a time when there’s a lot of mistrust and a lot of worry, that can end up feeling like a far more divisive route. And so I think get gaining information about options early and together is probably would be my preferred route for people. Then they make their decisions from there really.

Tamsin Caine: You know that sounds that sounds pretty sensible. Is there anything I should have asked you about mediation that we haven’t covered?

Maura McKibbin: I think it would be relevant just to pause and and inject a little bit of information about the different people that help us part of a mediation process because if you think about a financial separation process, gathering together and understanding financial information is key, and that’s the first step. Financial advice is obviously, really well placed to be able to help people to do that. And so you’re balancing knowledge and that’s important as people start a problem solving  process. Beyond that, of course, what you’re actually doing is reorganising your family financial life, which is a significant step financially and there can be incredibly complex considerations about pensions, about investments, about timing that really, fall fairly and squarely into the role of expertise that the financial adviser has. So what I say to people mediation is, you know, if it is, it’s about teamwork. And it’s about getting the right people to help clients at the right time as they move through their separation, formal separation, journey. And so I think it’s about encouraging mediating parties to understand that what they’re doing is very careful and very important, you know, exercise that will have longstanding implications. With that encouragement, you know, the idea that actually, it’s not something to be rushed out. There’s always a balance between getting to the right outcome that every understands and approves of. That takes time. And I think that can be a tendency to, because of emotion, to be in a big rush, to get things resolved and draw a line under things, which is very understandable. But at the same time doesn’t necessarily sit very well with that careful financial reorganisation that needs to take place.

Tamsin Caine: Yeah, I absolutely agree with you there. Some of the complications around what appears to be a fairly straightforward split can make all that really, really complicated. That’s fantastic. Thank you so much for joining me this afternoon Maura, it’s been really good talking to you.

Maura McKibbin: It’s a pleasure, Tamsin. Thank you.

Tamsin Caine: Thank you for listening to The Smart Divorce Podcast. If you would like details of our guest today or myself so you can get in touch, please check out the programme notes. Many thanks. See you again soon.

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