There are many reasons why people choose family mediation (and other non-court routes such as collaborative law) to resolve issues arising from a separation, including a wish to resolve matters amicably with their former partner (with less cost than going to court), or to retain/develop a good parental relationship for their children’s benefit.
But, as Mediation Week draws to an end, it is worth remembering in this celebrity culture, that another big draw to mediation, particularly for those high profile individuals who want to keep their family matters away from the prying eyes of the media, is that mediation takes place in private, and, if matters can be agreed, never needs to go before a judge sitting in court.
There is an increasing call for the family courts to open up to the media, with a formal Transparency Consultation underway and, already, a number of judges are allowing journalists to attend divorce and family hearings and report widely. It is likely therefore that the inclusion of confidentiality clauses in family agreements will become an even more important bargaining chip in negotiations to reach a financial settlement than it already is, e.g. ‘I will give you more money if you agree to sign up to these confidentiality clauses and not go to trial’. But those celebrity couples who want to keep their affairs private, as often many do (or don’t even want the knowledge of them going to court appearing in the media), can agree at the outset to negotiate using non court processes such as mediation or collaborative law.
There is a misconception that celebrities and HNW clients are clogging up the English courts with their divorces (a journalist’s dream), or racking up huge bills with top London divorce solicitors (the lawyer’s dream), when in fact there are many who are quietly working out the details of their separation, including the financial arrangements and those of their children, with the assistance of a mediator and/or lawyers in private for their family’s benefit. Over the many years that I’ve been a mediator, I’ve worked with clients from all over the entertainment world including A-list actors, musicians as well as other high profile individuals such as politicians or even journalists who have chosen to mediate to retain the privacy that they crave. Just like all of us, but perhaps even more so, these high profile individuals want to keep their private life, yes private, and for some it could be disastrous for their image or livelihoods if the family secrets - warts and all - are leaked in the media, which is a risk if the case goes to court. While the more traditional family mediation model (with one mediator and the couple) is certainly not right for many (and particularly if there is a significant power imbalances), these days there are many different models available for clients such as hybrid (shuttle) mediation, mediation with lawyers and collaborative practice without the need to go to court. I never sell mediation as an easy process, it’s certainly not right for those who just want ‘revenge’ and clients should ideally be emotionally ready for it to work successfully. However, those who choose to sign up to mediation understand the mediator’s mantra that a good outcome is not one they should expect to be happy about – why should they be happy, they’re separating, potentially the worst experience they and their family have ever faced - but a good outcome is one with which they are both comfortable and can live with, and which they have not had imposed upon them.
For mediation or collaborative law to proceed, couples need to sign an agreement signing up to basic confidentiality provisions and, as part of a wider agreement about the financial outcome, it is not unusual to agree specific confidentiality clauses, for example about not disclosing the terms of the financial settlement, but sometimes wider clauses about aspects of the couple’s personal lives or histories. In the cases that I’ve done over the years, I’ve found it invaluable to seek the input of my colleagues in our reputation management team who routinely advise clients about privacy issues.
And if mediation – which is completely voluntary – should fail, these days, clients who again wish to avoid the scrutiny of the courts, can choose arbitration, a forum involving a private judge who can impose a binding outcome. Like mediation, arbitration is an increasingly popular route for high profile clients but certainly not one popular with celebrity journalists!
If you have any questions about the issues raised in this blog, please contact a member of our family and divorce team.
About the Author
Charlotte Bradley is head of the family and divorce team at Kingsley Napley, where she has been a partner since 2001. Charlotte specialises in all aspects of family law, particularly international issues, both in relation to finance and children. She has a reputation for cross border jurisdiction issues, particularly European and Relocation cases, and for acting for unmarried parents in Schedule 1 (financial provision) cases.
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