On a number of occasions when sitting, Stephen heard Dr Freda Gardner, Consultant Clinical Psychologist, say in evidence as an expert witness: ‘the issues in this family should never have developed to a point where this litigation became necessary’. Then, one day, they met outside the court environment, and he asked her how she thought that issues in complex family cases might be resolved better. That led to a number of further conversations and, ultimately, to them both changing their working arrangements and working together in an LLP. Having both trained as mediators, they now work together, as consultant clinical psychologist and lawyer with mediation training, to offer separating couples a different form of non-court dispute resolution (NCDR) in cases concerning children and finances.

We, Stephen and Freda, therefore, write this article to describe that work and its benefits. It then goes on to consider another form of developing NCDR which we prefer to call a settlement meeting. A settlement meeting involves a lawyer with expertise in a relevant area of law meeting (alone or with a psychologist) with the couple and their legal teams to thrash out a settlement. Rather than try to shoe-horn that type of meeting, awkwardly, into one of the existing categories of NCDR (lawyer assisted mediation, early neutral evaluation (ENE) or private FDR – none of which hit the nail on the head), we will write about them as settlement meetings.

Work that integrates the expertise of a lawyer and a clinical psychologist represents an approach that harmonises informed conflict resolution, legal experience and psychological insights. We apply it across the full spectrum of family issues; it is not limited to cases concerning children. It is a collaborative model which is particularly effective in circumstances where, as in many cases, emotional and psychological factors have a significant impact upon the issues that need to be resolved.

As a clinical psychologist, Dr Gardner plays a pivotal role in assisting parties to explore the underlying emotional and behavioural issues that may be intensifying the conflict and complicating the process of resolution. She works to facilitate the development of mutual understanding, so that complex emotional issues within the relationship can be explored safely, with appropriate support and containment. She is skilled and experienced in ensuring that issues of that nature can be expressed and understood. In this way, the complex issues that frequently prevent resolution, such as emotional inequality, control, vulnerability and conflict-driven exhaustion can be addressed in the context of our work.

Concurrently, the lawyer-mediator (as we are calling the role) is able to focus on understanding the underlying legal issues and guiding the process in a manner that is fully and legally informed. For instance, in a meeting about finances, the parties may well need help ensuring that disclosure is completed, understanding the finances, understanding reports (e.g. pension reports) or company accounts and then understanding and maintaining the legal context in which discussion can take place, for example – can there be a clean break, what is a pension sharing order and how does it operate, what is a Duxbury payment, what tax advice do they need, what other information is needed for a fair resolution, are arguments that one party is advancing realistic? Although the parties may each have separate legal advice, the lawyer-mediator can ensure that the legal context of the discussion is maintained in the immediacy of the work that we are doing with the couple.

We believe that by working together we can ensure a fair resolution process, and develop a more comprehensive approach to mediation by addressing the emotional, legal and practical dimensions of disputes. This model of co-working allows for different perspectives, avoidance of any appearance of gender bias, improved communication management, and increased support for the parties involved.

We aim to provide a balanced and supportive process where emotional and legal needs are addressed to create amicable resolutions and enduring outcomes. We believe this can be achieved because the parties manage the process of separation and resolution within a revised relational dynamic focused on emotional preservation and development.

We find this style of working of particular value when working on complex cases, be they financial or child-related. Whatever may be his own skills, Stephen recognises that he does not possess anything like the skills of Dr Gardner when working with people and understanding the emotions that contribute to the complex dynamics that prevent resolution. He also recognises that, when discussing issues, in finances or children, it is very easy for someone without psychological training and experience to unintentionally ‘trigger’ one of the parties in a way that could jeopardise the whole process. Further, some family issues are so complex and ingrained that they need two professionals, working together with the couple, to make effective progress. By contrast the lawyer involved can bring years of experience in the specific area of law involved and in the settlement of cases.

It is also a style of work that lends itself well to greater involvement, where appropriate, of children. Dr Gardner has spent years working with children and writing expert reports for the court on complex child-related issues. Therefore, if an issue arises where children need to have a direct voice within the process, she has exceptional skills in engaging with the children concerned. She also supports parents to understand the perspectives of children when considering arrangements for co-parenting.

Working with a clinical psychologist also allows for proper, trauma-informed practice. The phrase ‘trauma-informed practice’ tends to get used with liberality, but it is an extremely complex form of working. Most professionals will assert that they work in a trauma-informed way; we wish that were so. If the balance of the resolution process is going to be maintained in a collaborative environment, a proper understanding of the impact that trauma may have had on the functioning of the couple as parties to a relationship and as parents may be essential if their divisions and relationship issues are to be addressed collaboratively. That applies whether the issue be money or children. As a clinical psychologist with considerable court experience as an expert witness, Dr Gardner can ensure that discussions occur in a safe and constructive manner, minimising emotional distress for all parties. As a lawyer-mediator, Stephen recognises that he does not have anything like Dr Gardner’s skills as a trauma-informed clinical psychologist who has worked in her professional domain for the same amount of time that he has been a lawyer (i.e. a very long time).

Neither of us is prepared to say that this is just mediation by another name or description. We have worked as mediators, and Stephen qualified and practised as one before being appointed to the bench and after departing from full-time sitting. This work feels very different to the type of mediation that is generally practised in this country. We have always been concerned about mediators who think that a mediation qualification gives them an ability to mediate in areas of practice in which they do not have very specific training and experience. A general mediation qualification may extend to an outline understanding of the law relating to financial remedies, for instance, but any financial remedy practitioner will know that it takes years and a particular aptitude to deal with complex financial issues. The same applies to complex issues relating to children.

Stephen gives this example of a case that spilled over into court litigation, after a financial mediation was completed. The husband was a one-third shareholder and a company director in a family company. The company accountant valued the company. The fixed assets involved business units. The business units were entered into the accounts on the basis of their purchase cost, increased by the money that had been spent on them before they were leased out. The units were worth very considerably more than the figure in the accounts. The value of the husband’s shares was discounted by a third, due to being a minority interest, even though the company was a quasi-partnership on any reckoning. The wife accepted what the husband said. The mediator, who did not have sufficient experience in interpreting accounts, did not identify the issue and nor did the wife’s solicitor. The wife got a very bad deal and it all had to be unpicked in court.

Given the experience that we have, we think that we are able, where necessary, to be more directive with the couple if one of them is obviously barking up the wrong tree (e.g. when and if we hear ‘it’s my pension and I am keeping it’). We also think that the type of work that we do is better able to get to the core of the issues that lie between the couple because we have dealt with the underlying issues in our professional work.

There are two areas of NCDR that are especially problematic – consent and domestic abuse. As to the first, NCDR is based on consent – the parties must agree to mediation, ENE and private FDRs. Mediation involves the continued and agreed involvement of the parties leading to an agreed ‘understanding’. Even though arbitration involves a decision being imposed on parties, the parties enter into the process of arbitration by agreement; the choice of arbitrator and the issues that the arbitrator is to decide must all be the subject of agreement, also (or they must appoint IFLA to select the arbitrator). The work that we do involves the continued consent of the parties, in the same way as mediation, and that means that the parties must have confidence in us and the process that we are following. The model that we are using, we believe, encourages that confidence because of the combined involvement of psychologist and lawyer-mediator. A single mediator is involved in a triangular relationship with the couple when they work together, and it only takes one point of the triangle to break for the system to fail.

Domestic abuse and the effect of it on NCDR is controversial. As NCDR develops, there is an increasing examination of how it can take place in some cases, even where there has been some aspect of domestic abuse. Surely, in a case where there are allegations of domestic abuse, it is a question of degree and the effect that the abuse would have on the NCDR process that is suggested. The dividing line between cases that are suitable for NCDR, despite allegations of abuse, and those that are not, is complex. If there are significant allegations of abuse then mediation, for instance, it may be said to be unsuitable. That being so, the early identification of abuse (which includes, for instance, coercive control) is essential. Not only do we think that two heads are better than one in identifying whether a particular case crosses the dividing line, but also that if NCDR does continue (in money or children cases) where there have been allegations of abuse, the involvement of a psychologist can be of particular importance.

We think that this model is an effective way of working. It produces good outcomes. Further, it feels positive and leads to an effective relationship developing between the four people involved. It also means that, when difficulties emerge, the lawyer and the psychologist are able to discuss the issues together, rather than the single mediator having to deal with matters in supervision (which cannot be as informed as co-working) or alone. As to expense, it is as expensive as the people involved want to make it. Because we believe in what we are doing, we charge, for the two of us, less than most financial remedy solicitors do.

This style of working is not unique. It is well recognised in other countries. We were influenced, in particular, by the work that is done in Denmark where mediation is an integral part of the court process. For instance, in a child-related case, the judge will work with an expert on children in an investigative court process. They do not allow any of the hugely damaging adversarial hearings that so dominate our practices and wreak such havoc with our listing arrangements. If that form of co-working can be so civilised and successful within the court process in Denmark, why, we asked, should it not be transported into the NCDR arena? So, we took the plunge. We have absolutely no regrets for having done so. We think that it is a style of working that would also improve issue resolution in the workplace, the community and within other organisations.

Of course, this article cannot trawl the world to state what happens in every country. However, in the United States, many states encourage interdisciplinary mediation, especially in family law cases, where psychologists or mental health professionals work alongside mediators to address emotional and relational aspects. In Australia, mediation is integrated into the legal system, and psychologists often participate in family dispute resolution processes, particularly in cases involving children. In provinces like Ontario, in Canada, mediation is a mandatory step in family disputes, and psychologists may be involved to provide emotional support and insights. In Germany, judicial mediation often includes psychologists or counsellors to address emotional dynamics alongside legal issues.

Now settlement meetings. We can hear the voices of mediators saying that what we are describing is ‘hybrid mediation’ or ‘lawyer-assisted mediation’. We can also hear financial practitioners saying: ‘that’s private FDR/ENE’. However, having done settlement meetings and those other forms of work, we do not agree. They are different from mediation (which, we accept, can involve lawyers being present) because they are much more directive than mediation. They involve the person holding the meeting engaging actively with the lawyers and their clients, giving indications on issues that present themselves, giving clear views on legal issues and actively involving him/herself in the process of resolution. It is not a matter of facilitating discussions leading to a without prejudice ‘memorandum of understanding’. At the end of the meeting, if matters are agreed, there will be a formal heads of agreement document. Further, by having the lawyers present, the pausing of the process for the parties to get legal advice (which causes delay and people’s eyes to drift from the ball) is avoided. They feel very different to mediations.

As to the comparison with ENE and early (private) FDRs, settlement meetings do not just extend to money cases. Stephen has done two where money and children were considered, sequentially, in the same 2-day meetings and it was possible to resolve both issues in both cases before proceedings were issued. They are different to ENEs in that they do not simply amount to the evaluator expressing an opinion on a ‘Menu choices: One: Take it. Two: Leave it’ basis. The person holding the meeting engages actively in resolving the issues and securing an outcome. The nearest analogy is the private FDR but they only relate to money and often take place later in the procedure. Settlement meetings take place outside the scope of legal proceedings and can cover much broader issues, including children. They are a sort of one-stop shop.

Do settlement meetings work? We believe that they do. So far, so good on the ones that we have held.