Mediation queries (divorce related)

[bobs123]

After over a year of drawn-out communication between stbx and myself via our solicitors, we are now going to mediation. We have got as far as decree nisi and DC are sorted (he is paying maintenance following a push via my solicitor)).

We exchanged all the finance stuff and got as far as a proposal and a counter proposal. We are not worth a massive amount depending on how you look at it, but because it has taken so long to get to this point (not my fault) my solicitor has now suggested this.

I have tried to research this and have the following queries if anyone can help

1. Is mediation paid for jointly, and if there are extra charges incurred through, for example, one side cancelling/not attending an appointment, who pays?

2. Are our solicitors present, or do we report back to them?

3. If one side does not turn up to even the initial meeting, can it then proceed to court?

4. If the mediator cannot give advice, how can this be resolved? Is it really down to me and stbx to make the decisions?

5. could an agreement be reached, and then one side go back on it?

I realise it is all about being reasonable, but incredibly difficult to deal with someone who claims to know nothing about finances, is incredibly busy, takes 5 months to reply to a query, and who really, really would cut off his nose to spite his face (just a touch of sarcasm there!).

I would be so grateful for any help or useful advice given as I know there are those of you on here with the relevant experience to do so.

And another question - do we have to revalue all assets, or can the disclosure values be given from earlier this year? Can this be forwarded from our respective solicitors or do we just supply them or do we have to fill in form E?

bump

1. You will both pay for mediation separately. I think legal aid is still available for this and you can be assessed separately. I don't know what happens if someone cancels - it may depend on the mediation service.

2. Solicitors aren't present - you report back to them and can get advice between sessions.

3. If one side does not turn up then you have shown you have tried mediation and I believe it can proceed to court.

4. The mediator can advise on what would happen if it went to court and can pass on knowledge of what other families in similar situations might do. The mediator is there to help you make the decisions but cannot make the decisions for you.

5)Yes. Agreements can be reached and one side go back. This happened to me. We reached an agreement over finances which he went back on. Things we eventually settled with solicitors and court.

Thanks for that MsColouring I've spent a couple of hours researching this and had found a couple of answers.

It's most useful to know the answer to no 4, as because I have the assets but stbx has the well paid job I need to be as well informed as possible as I have the most to lose. I realise s25 of the MCA is useful, as of course will be any advice from my solicitor. No legal aid unfortunately

Tried mediation with ex twice with two different mediation services.

First time, ex hated it as the mediator told him a few home truths when it came to finances. The mediator was sensible enough to say at the third session that perhaps we needed to defer to our solicitors.

Tried again about a year later. Different mediation service and IMO the male mediator had a bit of an ego and wanted to be the one who get us to come to an agreement. Really should have stopped soon as by the end I was an emotional wreck.

Yes i've heard that some mediators can be not quite as expected! I just want one who will help move things along, home truths and all. Whether stbx chooses to participate or not we shall see.

I realise as time goes on I am becoming more of an emotional wreck too. I even regard silly things like every car trip I make atm as an accomplishment (iyswim) and get tearful at the slightest provocation. The stress is truly intense, but then that is his intention

Get some counselling if you can. I had some and really helped me through - I was lucky though as ds was only two at the time so health visitor recommended me to relate and I got it for free.

Although I haven't discounted it I don't think counselling is the answer for me. Unfortunately DD2 is on anxiety tablets and the doctor has suggested counselling which she might get. She has a lot going on atm and this situation is just adding to it.

I think I understand why I feel like I do and do what I can to mitigate it - keeping fit, fresh air, eating properly, having a positive outlook etc. It's the lack of control over my life/currently being unable to buy a house for myself and my family that is causing the stress. It's really just a process i have to go through, and I come on MN hoping to glean any tips i can to try to make things easier/faster/cheaper.

I'm glad you made it through though

bobs123 I am in a similar position to you! I have assets but STBXH has well paid job - so I have most to lose. We have been recommended mediation, but the thought of it really stresses me out - ex is aggressive and acting 'hard done to' but it was his decision to end the marriage. Feel like I'd rather boil my head than go to mediation with him. Would be great to hear if the reality of it is any easier. Is it really more likely to reach agreement than lawyers dealing with it directly?

Hi triathlonmum. It's good to finally hear from someone in the same position.

I believe that mediation is supposed to be good, but only if both sides want it to work. Depends on how reasonable he wants to be!

The fact that over a year all we have managed is disclosure, one proposal and one counter proposal, says a lot in that stbx wants to spin things out as long as possible, and cause as much expense as he can

My stbx is passive aggressive - much more sneaky and hard to recognise in his actions. We have had no contact for months now. I initiated the divorce - should have done it years ago.

I think in our position we need to be as well informed as possible. My stbx did not want to include his pension accrued from pre and post marriage, but was happy to include my assets accrued in that time.v(Incidently he is looking for more that 50% of the total assets but excluding a good chunk of his pension)

The fact that he is in a well paid job, whereas I have a been a SAHM for over 20 years should count for something, but how much more of the pot than 50% should be mine i have no idea, on the basis that I would never be able to earn what he does.

Section 25 of the MCA is quite useful, and armed with that, our proposals and any further advice from my solicitor, I shall go forth and do battle negotiate. However I expect him to sit there, say very little, and not agree to anything not make suggestions of his own

Bring it on.....

Oh, and another thing...kids still need maintaining when they're at uni so apparently child support can be paid till they finish uni I believe (dyor!)

Hi bobs thanks for your reply. Think my ex will just sit there and not make any constructive suggestions but pull apart anything I propose as being grossly unfair (as he is so hard done by etc). He is a bully who tries to act like a victim (if that makes any sense??).

What is s.25 of MCA?

When is your mediation booked for?

Makes perfect sense. I spent years trying to work out why my stbx was why he was (got married pre MN and even when I joined over 10 years ago someone said I should ditch him!)

Section 25 of the Matrimonial Causes Act - just google it and find a link that seems most readable!

My understanding (could be wrong and very basic) is that if it goes to court everything is apportioned 50/50 - your and his assets including his pension (he needs to get a CETV - cash asset transfer valuation) as a starting point.

Then arguments can be made with regard to Section 25 of the MCA - it should make good reading from your point of view. My dc are 21 & 17 so the child element not so applicable for me.

I don't know what your assets are but if they are in shares or property find the selling valuation and deduct costs for sale and any CGT that might be incurred if you sold them all at once.

Anything you have put into the matrimonial pot - i.e. your family house, anything in joint names etc will be counted as joint assets.

Presumably you already have a solicitor? Has he suggested anything and have you exchanged finance stuff and made proposals?

No I do not have a date for mediation. i know who we are going to use though and the referral letter was sent last week. I believe things move quite quickly and am expecting a first phone call next week hopefully which will be to check that I want to do mediation. Stbx will get one too. Then will come a meeting separately with the solicitor. Then we send/give the finance stuff and all have a wonderful cosy meeting round the table. THEN we will see how good the mediator is!!!

HTH and any help in return gratefully received. I feel like I need as much advice as I can get

Hi - main issue for me is the house, which we hold as tenants in common with a greater % being mine. This is because I had a property previously and put in the equity from that whereas he had no equity to contribute so it was very unequal. I also earned substantially more than him per marriage (and continued to do so in early days of marriage) so I had more savings too. Fast forward 11 years and I've been mostly part time (due to be ing main carer for the children)....and he is on a huge salary but still on paper I have more 'assets' than him. I would be gutted if he walked away with 50% of assets and his salary/increased earning potential. It just doesn't seem fair. If I get to keep my share of the house, I can stay here with the children therefore giving them stability. As yet, no full exchange of info and no proposals except for one from him which involved me giving him more than his share of equity but didnt give me anything in terms of spousal maintenance or his pension etc. Funny that....

As it looks like we might be going through this to a similar timescale perhaps it would be good to keep in touch? I'm terrified of the 'cosy chat round a table' stage......

Hi, you probably won't want to hear this but here goes...

As I said above, anything that has been put in the "matrimonial pot" - i.e. enjoyed by the family - becomes joint assets. The fact that you severed your joint tenancy (became tenants in common) I don't think means anything when getting a divorce. It just protects your share if you die. I did the same with our house (as stbx wouldn't make a will and has other DC from previous marriage) and it would have left me in a bad position otherwise. FYI I paid for 80% of our house and paid off the mortgage with an inheritance. That means diddly squat apparently (wishing someone would come on here and say otherwise but then pigs might fly!!!)

The fact that you have dc and you are their main carer is paramount as their needs come before all else so there is an argument for you to get the larger share.

11 year marriage? I don't know how relevant that is in the scheme of things. He has a well paid job, but then you say you had a well/better paid job too pre dc so he could argue that you could do so again.

It might not be as bad as you think though. If he has a well paid job then presumable he is accruing a good pension...VERY important in the scheme of things. Do you know any details of his pension - how much, how long he's had it, how long left to go etc? I don't mean to be nosy but it's useful to have a rough idea. If you want feel free to message me though can't promise anything! You might find his pension value way higher than you thought

So basically you take the house, any assets included pensions, add them up and then divide by 2 as a starting point. Then there are changes made re s25 of the MCA so you could end up with say 70%?????

A friend of mine got to stay in the house, but has to sell it when her youngest turns 18.

I personally am arguing that everything I have (other than funds invested in the house which are now lost) is non matrimonial as it is gifted or inherited. these assets have always been kept in my name. However that depends on whether stbx can exist on 50% of what's left.

I stress that this is only what i have learned after starting the process, and who knows, it might became a whole different ballgame as it continues - certainly an expensive one!

Anyway check out the Matrimonial causes act and also google Form E which you might find yourself filling in soon

Oh - and personally I can't wait for the 'cosy chat round a table' stage. My stomach might permanently be in knots and I don't want to see him and he will probably (true to form) sit there and say very little and be incapable ok making a decision, but at least it will be one step closer to getting rid

Interesting - I've seen 5 lawyers (before settling on the one I thought was best!) and all felt the deed of trust that we'd had drawn up re the house would carry weight if it got to court, even if it wasn't upheld completely.... but as you say, I'm the main carer for the children and my argument is that they need stability of staying in the house. So trust deed plus s25 I hope means it should be ok. He has a final salary pension, so think I am going to be asking for an actuarial valuation of that.....

Good - you sound like you have things sussed. I gather with a final salary pension there are various extra benefits and an actuarial valuation would prob be a good idea as although it can can a wide range it is more exact than a CETV.
Deed of trust? Have googled it and well done for having one - I didn't know about they existed - for married couples anyway. Sounds like you're in quite a good position.

I think the rule of thumb is that after taking into account dc, that both parties can be rehoused i.e. that stbx can get somewhere else.

i'm still waiting for the mediator to call - stressful as I really want things to move.......

Good luck bobs I can't bring myself to start the whole negotiation process.....I'd rather boil my head etc etc!! My STBXH can def be rehoused if he takes his share of equity. Maybe not in the exact place/size of house he has his mind on though....

Do keep in touch and let me know how it goes. Are there specific things you want mediator to focus on, have you any things you agree on? Did you try to negotiate between you before getting to this point?

Update...I phoned the mediator this morning to see if they had got the referral from my solicitor. they had and have invited stbx for a MIAMs (initial meeting) in 3 weeks. If he doesn't turn up apparently they offer him another meeting. If he doesn't turn up to that then they issue something to say mediation has been tried and we go to court. That would cost me £30 so far. If he turns up for the meeting I then have a similar meeting and we for from there (and pay for each meeting).

Re your questions, as I said above on 1 Nov - yes we "negotiated" at snail's pace for a year. We exchanged finance stuff and one proposal each. We have not actually talked to each other, only via solicitors and I know there would be no point doing so.

Is your stbx still living with you? If you are still talking and have taken advice from solicitors, I would go straight to mediation. You will cut out a whole load of angst that comes from 2 solicitors going back and forth. My costs are now just short of £10,000 . I am finding the whole process very intense and have started having anxiety episodes and cry at the drop of a hat!!! It's very difficult to keep just how bad I feel from dc.

Btw I told the mediator not to contact my solicitor (cost) and to deal directly with me unless I say otherwise.

If your X feels hard done to I would say straight to mediation as what I have experienced over the past year has been horrible. It's the lack of control and sheer time.money it takes...and the waiting and not knowing...omg!

We sold our house and each moved into rental. Because he has a good income he can afford his luxury pad, whereas I am in somewhere somewhat smaller in a slightly less salubrious area with the dc and am having to go through my capital to afford it which I really resent. The proceeds from our house are being retained by the conveyancing solicitor (not even earning any interest) until we sort things out (not my choice!)

At least there are timescales with mediation (and court if it comes to that). A good mediator should quell any aggression and outbursts and you have to go into it purely with finance in mind.

I really need some advice on limiting solicitor's costs from now on. Hopefully telling the mediator just to deal with me rather than my solicitor should help. However if it goes to court I need to find a way to stop my solicitor racking up the charges. I don'T know if I can just use him in an advisory capacity? I already have a barrister sorted if it comes to it who I have already consulted.

sorry, long post -just feeling really really pissed off!!!!!

PS At least I now qualify for tax credits and an NHS Exemption Certificate which is something if I need to go on medication (trying to avoid it though)

Hi bobs, I'm sorry this is all affecting you so badly at the moment. I guess the only way to cope is just as you are - ploughing on and knowing that at some point it WILL all be done and you (and I!) can get on with your life.

Really good advice re straight to mediation though - as I am about a year behind you by the sound of things. I am tempted by the idea of lawyers just dealing with it all for me (bury head in sand strategy?!) but sounds like that could be very drawn out and expensive. I guess you can still go to your lawyer for advice in between mediation sessions if you feel the need?

How did you find yourself a barrister? Did you do that to get another view on what is fair ...or in anticipation of ending up in court?

Do take care of yourself. Three weeks sounds like a long time to wait for mediation - perhaps it is because so many people need to use it??!

Arrrgh..........

Unfortunately lawyers don't just deal with it - you have to have some input! It's just that everything goes via them and you pay for the privilege. However they are on your side and give relevant advice and depending on if you get a good one and there's no procrastination...

Yes I think the idea is to go to the lawyer in between mediation sessions. the mediator does not tell you what is necessarily fair but your lawyer will.

My solicitor recommended the barrister - i think it was to get a better view of what a court would recommend. I have mixed feelings whether this should have been done, but if it does go to court and we use said barrister, then probably a good idea.

What was expensive was to have the solicitor at the meeting as he wasn't needed and just added to the cost. If you were ever to do this I would say to see the barrister on your own, armed with any paperwork supplied by the solicitor, and consult with him/her afterwards.

Re mediation, you could self refer i think and then it is up to the other side to respond. Just google mediation solicitor for your area

How are things going? I assume mediation has happened now? Or, are you waiting for Court dates? Very worried about own divorce and hoping I do not have to negotiate directly with him. Really hope you two have some happier tales to tell now!

My ex got 60% but I earn more (and I have to pay the school and university fees and he pays no child support). Every case is different. |In general it tends not to matter whose name assets or in even assets from before the marriage for longer marriages as the starting point is 50% once debts are deducted and then you make adjustments based on who earns the most (me in our case) and who will need to house the children so the women on the thread with low income or no income and who regard assets as theirs (we regarded all assets as jointly ours by the way in our marriage) will probably find they get the house until the youngest children are 18 and then split it or if it can be afforded now to do a clean break pay off get a lump sum may be 60% or even 70% as they earn less or possibly that percentage plus some spousal maintenance if they cannot get jobs.

We had no court hearings or mediation but just negotiated through our lawyers what sum we'd accept which certainly saves time and cost and we both preferred money went to the other person rather than solicitors. Not everyone thinks like that. Some are happy to waste every penny the couple have on solicitors and ensure their other halve gets nothing which is so silly and unfair on the children.

Any tales of mediation to share?

Flower I got married nearly 30 years ago, had a good career. Gave it up due to various pressures when children came along 20 years ago. Now being replaced by younger woman and new baby yadder yadder yadder...

Have seen your advice to women over last few years, in previous incarnations as well as your current one. I am the living example of what happens to women who make decisions based up the notion they will always be a couple. Rank stupidity.

Keep on making a song and dance about women maintaining and improving careers. Tis very good advice.

In the meantime, mediation? Tales?