Following my colleague’s blog last week in which she discusses the honey trap in episode 1 of the new Sky Atlantic series “War”, I was intrigued to see what themes would emerge from episode 2 – “No More Nasty Surprises”.
Episode 2 centres around the first mediation session in the contested divorce battle between tech mogul Morgan Henderson (Dominic West) and film star Carla Duval (Sienna Miller). The episode makes compelling television, but it presents a picture of mediation that is far removed from what we see in our mediation practices.
Rather than genuinely trying to settle, both legal teams use the mediation to gather information and identify weaknesses in the other side’s case. The atmosphere is adversarial and litigious, with Morgan’s team saying they will be “pretending to be….. perfectly reasonable to deal with” and “the last thing any client wants is for their lawyer to be reasonable”. Mediation is depicted as a high-stakes strategic game, a “pantomime” with competing legal teams deploying their tactics. The lawyers are running the negotiation show, with very little input from the clients.
The reality of family mediation is quite different to the TV drama.
Mediation IRL
As highlighted in my previous blog The advantages of mediation in resolving family disputes, mediation can be a hugely positive and successful way to resolve family disputes, no matter how complex, how wealthy or famous the parties are. Trained and experienced mediators work hard with the couple to facilitate agreements and take a collaborative approach to relationship breakdown. Discussions are held “without prejudice” meaning that any concessions made in a mediation negotiation can’t later be referred to in court.
Family mediation is designed to allow separating couples to discuss and explore solutions for their family and, where possible, avoid the emotional and financial cost of destructive litigation. Mediators are neutral facilitators rather than decision-makers or strategists for either party. Whilst mediation can absolutely be an emotional process, it is intended to be a respectful space where parties can communicate their views safely.
In “War” the lawyers attend and actively participate in the mediation alongside their client, with the mediator shuttling between the two sides, communicating their offers written on a single piece of paper. In practice, while clients can choose shuttle and lawyer assisted mediation, they can also attend on their own (taking legal advice alongside the mediation sessions). Proposals are usually detailed and considered, and rarely just about one number.
Disclosure
In War, during the mediation session, Morgan reveals that his company is worth far more than when the prenuptial agreement was signed. Within mediation, both parties would be expected to give up-to-date financial disclosure and if there are business assets, valuations would be required.
Mediation for celebrities
There are huge benefits to mediation and other non-court options for high-profile, celebrity and high-net-worth couples who are separating, just like Morgan and Carla. The process offers privacy, flexibility and greater control than court proceedings.
- Privacy and confidentiality: Unlike court proceedings, mediation is confidential and conducted in private. The media are not informed that mediation is taking place, what is discussed, who attends, or the outcome reached. This can be especially important for individuals in the public eye.
- Court transparency: There is growing transparency within the family justice system, including greater media access to hearings and documents. Mediation allows couples to keep sensitive financial, personal and family matters out of the press.
- Time and money: Mediation can help couples reach agreements on finances and children more efficiently than court proceedings, reducing both time and legal costs.
- Flexibility: Couples can determine the agenda, discuss issues that may not be prioritised by a court, choose the location and format of meetings, and schedule sessions around work, travel and childcare commitments.
- Third parties: Couples do not have to mediate alone. Lawyers, financial advisers, agents and other relevant professionals may attend where appropriate.
- Bespoke: Mediation can address industry-specific issues such as international travel, relocation, fluctuating income, royalties, career planning and management of public messaging around a separation.
Mediation is a collaborative, confidential and settlement-focused process, not the strategic battleground and point-scoring between legal teams that War seeks to portray. In my experience, mediation enables relationships to be preserved, publicity controlled and finds outcomes which are chosen by the parties themselves. That is not to say, however, that the portrayal of mediation in War does not make excellent TV! I’m just grateful that it’s not like that for mediators and families in day to day life.
Get in touch
If you need advice or have any questions about mediation please contact Connie Atkinson.
