Podcast S6E2: Empowering Families – The Case for Mediation

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TRANSCRIPT

Hugill & Ip presents Series 6 of the HIP talks “Family matters”, a compelling podcast collection delving into the complexities of family law in Hong Kong. This season, our expert solicitors engage with preeminent professionals, psychologists, financial advisors and mediators to explore the real stories behind divorces, custody battles and financial disputes. Hugill & Ip brings you this series as part of our commitment to modern, client focused legal services, whether you’re navigating family law issues or simply interested about the system. Family Matters delivers sharp analysis without the jargon.

Caroline McNally  00:39
Hello, I’m Caroline McNally and I’m head of the family team at Hugill & Ip. I’m delighted to be joined by barrister and mediator Giles Surman of Plowman Chambers. Welcome Giles.

Giles Surman  00:48
Thank you very much, Caroline, thank you for having me on your podcast.

Caroline McNally  00:52
Giles, you and I have worked together both in your capacity as a barrister, but also acting as the mediator, and that’s what we’re planning on exploring today. To state the obvious, both Giles and I are advocates of using the mediation process to find solutions to family disputes, and I hope that this discussion will help explain why we recommend this process, and perhaps also burst some commonly held myths about mediation. But before we dive into the world of family mediation, let’s just talk a little bit about your background. Giles, tell me when your family first arrived in Hong Kong and what brought you here.

Giles Surman  01:27
Well, I’m giving away my age now, but I first arrived in Hong Kong in 1983 and I came here with my parents and my siblings, and we settled in Hong Kong, and we came here from the Pacific Islands. Fascinating.

Caroline McNally  01:43
I imagine that people would have assumed you had come from the UK.

Giles Surman  01:46
They do, but we came here from the Gilbert Islands. The Republic of Kiribati and Fiji is my sort of spiritual home.

Caroline McNally  01:56
And Hong Kong is one of those places that even when you leave, it brings you back. I think you did spend some time in the UK.

Giles Surman  02:03
Yes. I mean, I think, like a lot of people in Hong Kong, you, you spend most of your life here. I certainly spent the vast majority of my career here. I have been away for periods of a year, two years, three years, over that 45 year period. But Hong Kong has an absolute gravitational pull.

Caroline McNally  02:23
In relation to your legal career. You are qualified both in Hong Kong and in the UK. How did that come about?

Giles Surman  02:29
I am. I qualified initially in Hong Kong and then several years after being in practice here, I then went to re qualify in England and Wales

Caroline McNally  02:43
and your background is in criminal law as well as family law.

Giles Surman  02:48
Yes, I mean, I was called to the bar here in Hong Kong in 1993 and for most of the first 10 to 15 years, I practiced largely criminal law, not exclusively, but largely. And then from that point on, so the last 20 years or so, the family practice has been a more and more important part of what I do,

Caroline McNally  03:11
but having the experience in both areas, I think, is very helpful as a family lawyer.

Giles Surman  03:17
I think so. I mean, I’ve always maintained that if you’ve spent some years in the criminal courts, you may like to think you’re going to be a much better advocate, and you can carry those skills across.

Caroline McNally  03:30
You became a qualified mediator in 2007 and you’ve conducted hundreds of mediations dealing with all types of family disputes. So let’s start with the basics. What is mediation?

Giles Surman  03:42
Mediation is a process where you’re trying to resolve issues that arise from the breakdown of relationships or marriages, and you’re trying to resolve them in a collaborative and non adversarial way.

Caroline McNally  04:01
And I imagine your criminal experience probably informs that, because you see what happens in a court setting.

Giles Surman  04:08
Well, you know, I’ve been what I describe as a frontline advocate for well over 30 years now, and I can see how damaging and destructive litigation can be… now on the criminal side, you have no choice. The state is forcing you into a position where you’re in court. If you’ve got a private law dispute, a family dispute, then you you do have other options. And if you are able to try and resolve the problems that naturally occur as a result of the breakdown of a relationship in a collaborative way, then surely that must be better.

Caroline McNally  04:49
So what aspects of the mediation process are particularly important?

Giles Surman  04:54
I think it empowers individuals to craft their own agreement. It gives them an opportunity to have real input in an agreement that they are going to have to operate under, and it gives them an opportunity to make decisions about their own lives. And I think an important part of being a mediator is to help to create an environment where the individuals concerned have input into how they’re going to manage their children, how they’re going to manage their finances, and if they are empowered to engage and construct their own agreement, then the chances are it’s got a much better chance of succeeding as well.

Caroline McNally  05:44
It also takes the risks out of reaching an agreement because I think some of the well, one thing that perhaps people don’t understand is, if they go through the court process, they’ve just had the decision taken out of their hands, and there’s a lot of risks that go with that.

Giles Surman  06:00
I agree, I think, and I often say this to people in mediation, is that you have an opportunity to create your own agreement, your own workable framework for how you’re going to live your lives now and in the future. Do you want to abdicate the responsibility for that and give it to a third party? Give it to a judge? Now there are occasions, of course, where people are unable to reach workable, sensible framework.

Caroline McNally  06:36
An important aspect of the mediation process is confidentiality. Will you explain why that is so important?

Giles Surman  06:43
Yes, confidentiality is is an absolute cornerstone of the mediation process, because it provides a safe space, a safe place for people to explore different ways of trying to resolve their dispute. It gives them an opportunity to make suggestions, make proposals, explore ideas, without the risk that it’s going to come back and bite them in litigation.

Caroline McNally  07:16
I know that some clients don’t really believe that that is true, but I think we can both sit here and say that the courts are absolutely strict on that principle.

Giles Surman  07:25
Yes. I mean, certainly in my experience, judges are they will ask parties in litigation, have you been to mediation? Answer yes or no. They may go further and say when and possibly with which mediator, but that was, that is as far as they will go. And every court and every lawyer knows how important that confidentially around confidentiality around mediation is.

Caroline McNally  07:54
You previously mentioned creativity. What do you mean by that? And could you explain that a bit more?

Giles Surman  08:00
Yes, if you are crafting your own agreement, and my role as a mediator includes helping people to think creatively, then you can look at finances, tax, tax implications, and perhaps, let me give you the best way to answer that question is, perhaps to give you two examples. So let’s take real property, for example. Real Property, meaning, you know, flats, houses, the courts have limited powers. Essentially, they can order the transfer or they can order the sale, but if parties get a hold of their own agreement. They’re crafting their own agreement and they might agree that they’re going to refinance it. They might agree that they’re going to sell it, but not yet. They’re going to wait for better market conditions, or they’re going to wait for the youngest child to reach a certain age. They might agree that they transfer it, but they transfer the mortgage with it and somebody guarantees the mortgage. None of these things, or they’re very difficult to do in court. Tax is another issue. I mean, if particularly with multi jurisdictional issues, some Canada, I think actually taxes spousal maintenance. So you’d want to be very careful about how you crafted an agreement so that you would reduce the recipients liability to tax.

Caroline McNally  09:26
But it goes to the point I made before, about at the end of a trial, when you get the judgment, you just have a decision imposed on you, and there’s really not nothing particularly creative about that.

Giles Surman  09:38
No, that’s right. And also, I think the the the difference is that you will get a judgment and it will be a snapshot of that moment in time, just taking a step back for a moment. The wonderful thing about practicing family law is that you’re looking at the past, you’re looking at the present, but you’re also and perhaps most importantly, looking to the future. So when you get a judgment, there’s been an assessment of the situation as it was and as it is. Now, there isn’t and there’s a limit to how much account can be taken of what’s going to happen in the future. Now, you can’t take account of every eventuality, but there are certain things that are inevitably going to happen. The children will get older, the parties will get older, people will retire. You know that those things are going to happen, so you can take account of those. There may be some others that are possibilities. You can’t cover. You cannot cover every eventuality, but you can try and anticipate the common ones.

Caroline McNally  10:45
So the two principal areas in family disputes are really children and financial issues. Does mediation work for both aspects?

Giles Surman  10:55
Yes, it does, I mean, but I think there’s in the broader family context, there’s also, I think, a space now for mediation in a sadly growing number of mentally incapacitated persons and also in inheritance disputes. So that’s the sort of broader family context. But coming back to your question, children and money, does mediation work for both Absolutely yes.

Caroline McNally  11:21
And something that people might believe is that it’s only really for couples who are on good terms, and it’s not a process that can be used if there’s a lot of conflict. What do you think about that?

Giles Surman  11:35
I disagree. I think that regardless of the level of conflict, mediation can work. What we’re dealing with when we see people coming into mediation that you know, their marriage has broken down or breaking down, they’re often a really, very low point in their lives. All of the certainties with which they have grown accustomed to their marriage, their home, that their children will come home from school every day, that their financial security will be of a certain type. All of those, those anchors have been pulled up, and there they are adrift, and they may very well be in a high conflict situation. But one of the things that I often say to people when we start mediation is, you know, you will get through this, unfortunately, very sadly, you know, lots of marriages break down. People will come out the other side. Things will get better. So forgive me, that’s a long winded answer to does it work for high conflict cases? Absolutely indeed, in some ways, if you’re in a high conflict situation, you’re much better advised to go to mediation.

Caroline McNally  12:59
That’s a good point. Actually, I know that some people sort of shy away from it, or perhaps a little bit scared of it in a high conflict situation, but actually, perhaps in those cases, people need to do more talking.

Giles Surman  13:13
I’m going to probably regret saying this. But you know, when you have high conflict cases, as I’ve just said, you know, I think it’s more important to come to mediation. As a mediator that’s a that’s a real challenge, but that’s what’s the point of doing a job, unless you’re challenged by it.

Caroline McNally  13:31
I’ve heard you explain to couples as well about where they are at that stage of their relationship. So of course, when everything’s going well, they see each other through very positive lens. At the time they come to mediation, they are really seeing everything through a very negative lens. And sometimes the mediation process, in my experience, can help people sort of shift their view of each other. It becomes a bit black and white, and then the mediation process can help them sort of see shades of gray.

Giles Surman  14:05
I think that’s right. I think it’s, it’s it can be very difficult for people who are, you know, they’re all living in the same home. They’re everybody’s got a lot of stresses and strains, working, looking after children. Perhaps there’s a mother or mother in law also in the home, which doesn’t necessarily always help. There are other extended family relations, and it’s difficult for people to find the space and the context where they can really express their views in a, I was going to say, constructive way, but they can express their views without being shouted down and without it always being seen as negative. I mean, just on that point, what I sometimes find myself doing in mediation is acting almost as an interpreter, where somebody is expressing a view or an idea, often critical, and you try and take those words and you turn them so that the message gets across the underlying message, but without some of the overt, sometimes nastiness that comes with it.

Caroline McNally  15:25
One of the skills is to reframe, effectively, that’s what you’re doing, aren’t you?

Giles Surman  15:29
I think that’s a much better way of putting it, reframing. Thank you.

Caroline McNally  15:34
So there’ll be a lot of people out there who might be considering mediation. Should they be worried about getting involved in the mediation process and coming along to mediation?

Giles Surman  15:43
I can really understand why people are nervous about coming to mediation. I think it takes a huge amount of courage to step into a room with a third person, somebody like me, who you don’t know from a bar of soap and sit there with your soon to be ex husband or wife, or you know your former lover, if it’s a non marital relationship, and sit across a table and engage in a conversation with them when maybe you haven’t even seen them or spoken to them for six months or a year. And I say it takes a lot of courage, because, strangely, it’s almost easier to use your lawyers as your shield and your sword. You use your lawyers as your shield. You say, Well, talk to my lawyers. They’ll write to you. You use them as your sword because they speak for you. It takes a lot of courage to come into a room and sit across from your soon to be ex lover, husband, wife, and engage with them that and I really commend people for having the courage to do it.

Caroline McNally  16:56
Well, you touched on one point that I get asked a lot, and my role as the solicitor is clients say, do we have to sit in the same room?

Giles Surman  17:04
And the answer to that is, no, you don’t. It’s it’s something that I always assess when planning a mediation. I always see each of the parties separately and individually first. And one of the things, obviously, I’m checking with them is, you know, has there been any spousal abuse? What’s the not just the physical but the psychological environment in which they’re working? And are they willing? I never asked them if they’re happy to sit in the same room, because the answer will be no, but ask them if they’re willing and prepared to do it, and but no, they don’t have to sit in the same room.

Caroline McNally  17:51
I’ve had some experiences where everyone’s been sitting in the same room, and by that, I mean the parties with their lawyers and the mediator, and things have become quite heated, and I know I’ve felt uncomfortable, and I’ve looked for the mediator to step in, but you must know, or you must have to gage, when you need to step in and call a timeout.

Giles Surman  18:13
Yes, one of the things that I do as a matter of practice now is when I first meet the parties I run through a short list of introductory matters. One of them is sort of behavior, and you know, to be respectful to one another. You’re here of your own free will. You’re here to try and construct an agreement that you can live with it if you’re looking for perfection, I’m afraid you’re in the wrong place, but it’s an agreement that you can build yourselves with my guidance and help and your lawyer’s guidance and help, and that’s what you’re aiming for. So you’ve got to be respectful, because if you’re not, then chances of success are much lower. But coming back to the core of your question about people losing their temper, or people being quite, you know, sort of aggressive. It’s a really delicate balancing act, because I think it is important that people have an opportunity to express how they feel and to say what they want to say in my role, obviously, at that stage is to act as something of a referee. I don’t always stop people straight away. I sometimes watch and listen and deliberately let them go and let off a bit of steam. Then I suppose the art is to get it back on track and try and make something constructive out of that, which is not always easy, but I think it is important for people to be able to say what they want to you know, there’s been a huge breach of fundamentally, a breach of trust. Trust has broken down. It’s the first casualty of the breakdown of relationships and and. I think people want to express that…

Caroline McNally  20:01
…a little bit of venting can be helpful.

Giles Surman  20:04
A little bit of venting can be helpful within certain confines.

Caroline McNally  20:09
There is a common misconception that mediation is a form of counseling, and I know that that puts some people off. How would you address that concern?

Giles Surman  20:17
Mediation is about resolving a specific dispute or conflict with a clear ultimate aim, which is to get an agreement. It’s to help guide and facilitate a discussion. It’s not therapy. There is an outcome. There is an aim that we are aiming for a written, signed agreement, and that’s the end.

Caroline McNally  20:39
One of the skills of the mediator is to do what we call reality testing. What is that?

Giles Surman  20:45
It’s ensuring that a suggestion, a proposal, an idea that may come from one party or both of them, is practical. It’s about ensuring that people are objectively evaluating what they are thinking about doing, and if it’s done well, if reality testing is done, well, it actually allows the individual who’s put the idea forward to adjust that perception and adjust that idea without having to back down from it, it’s always about questioning people and then always giving them a way out and to move away from an idea that I as a experienced mediator, experienced family practitioner, know that in practice is probably not going to work, and it’s trying to get them to see that.

Caroline McNally  21:43
I know that some clients will feel, and I’ve had experiences with you being the mediator, they’ll feel that you’re just reality testing them, and you’re not doing it to their spouse.

Giles Surman  21:55
Oh, I can be hard on both sides. I’ve got no problem with that…

Caroline McNally  21:58
…but I think that the truth is it’s helpful to understand that you are doing that with both sides of it. You’re really challenging both sides so that they don’t stick with their positions.

Giles Surman  22:08
No, that’s right, it’s sometimes someone will actually have a very good suggestion that I can see may very well work, but even then, I might just test it a bit and say, Well, hang on, let’s stop let’s think about, how is this going to work on a rainy Monday morning in March, how is it going to work in that situation.

Caroline McNally  22:34
I mentioned before about us working together, and I think that perhaps some clients don’t understand the different roles that we play. And so how would you explain the mediators role, and how is that different from the lawyer’s role in the process.

Giles Surman  22:48
As the mediator, I’ve got a number of different functions. One of them is to keep the conversation going, make sure that it remains respectful, push things in the right direction gently, obviously, as a mediator, I will not make any decisions. I do not represent either party. I’m helping. Sometimes messages get across from one party to the other. I think one of the difficulties when relationships break down is that everything that your ex may say is seen in a negative light, and so people find it very difficult to actually listen to them. They hear the words, but they don’t really hear the underlying message. And again, I mentioned earlier, you know this word translating. It’s about reframing sometimes, and it’s about trying to catch the underlying message. To give you an example, we’re often talking about money, all right, so that’s dollars and cents, and we go through the figures, but money, of and by itself, is completely and utterly useless. It’s what it can do for you, what it’s what it represents. It might be a sense of security, it might be a sense of worth. It might be a sense of fairness around it, and that’s not necessarily the same as the actual dollars and cents.

Caroline McNally  24:12
I mentioned before about sitting in the room together in a joint mediation session. And there can be an expectation that if a lawyer goes along with the client, that the lawyer does the talking. And I certainly know I’ve had clients who’ve had experience in commercial mediations, and then they instruct me in a family matter, and they think that I’ll do the presentation for them, and they’re a little bit surprised when I say, no, no, you’re going to be the one doing the talking. How do you like to conduct your mediations when the lawyers are there?

Giles Surman  24:46
Having lawyers in mediation can can be very helpful. They’re a useful support, and they help guide their client. But I think it’s important that the parties have a voice and express their views themselves. And I think it’s important that the other party to the marriage or the relationship hears that and hears it directly from the client. And again, earlier, I spoke about courage. This does take quite a lot of courage, and there are people who feel very, very uncomfortable about it, and the lawyers can help support them in that. But people do find their voice. I mean, after all, we’re in this very strangely weird and artificial environment where we’re sitting in a mediation room. This is these are two individuals who met. They became friends, they became lovers, they married. They may have had children together. They’ve got a whole web of extended family relationships, and now here they are, disentangling their lives and not to expect one of them to actually speak on their own behalf with the guidance and support of a lawyer is just adds to that artificiality. So I always encourage people to, you know, explain to me, and sometimes, if they’re particularly nervous about their, you know, ex, then talk to me. Tell me, look at me. Don’t almost ignore the other person in the room. Just talk to me for a moment, and then I’ll I’ll help you.

Caroline McNally  26:28
So now I’m going to ask a little bit of a cheeky question, but I’m sure you’ve had experience of lawyers attending the mediation process, but not being particularly helpful. So are there some things that lawyers have done that you’ve found very unhelpful? And to put the question the other way, how can the lawyers help in the process?

Giles Surman  26:48
It’s a very, very good question. I think sometimes letters, solicitors’ letters in ongoing mediations, are not always helpful. The printed word lacks a lot of nuance. The letters are not just written to an address the issue or the other party. They’re sometimes also written quite rightly, with an eye to litigation. So letters of one, I think sometimes with less experienced solicitors, there’s a reluctance to think creatively and to embrace the ideas that can be thrown around in mediation and discussed. A lot of them after you reality test them, and you get people to think objectively, naturally die away, but it’s important that they are discussed. And I think the third thing is that, and this is really about the art of negotiation. It’s that as a negotiator, and my job is really to help the parties engage in a negotiation. One of the arts is to keep a lot of the jigsaw pieces on the table and not be left with one piece over which people are squabbling. It’s to get all of the pieces and to find pieces where one side attaches a much higher value to it than the other, and to have two of those pieces or more and then swap them over.

Caroline McNally  28:14
Some parties seem to believe that they have to choose between mediation or going to court, and I find myself having to explain how those processes can work in conjunction. Do you have a preference about whether there’s court proceedings ongoing when you have a mediation or would you prefer there to be no proceedings going on at the same time?

Giles Surman  28:34
I don’t particularly have a strong view either way there, there is no problem in having one foot in mediation and one foot in litigation. If that is where the parties are, I address it. If there are court dates that are there in the diary, it helps focus people’s minds, and you know, there are certain deadlines. But equally, if there’s no court dates, I mean, I often see people at the very early stage where they may even still be living in the same home. There’s no divorce petition, there’s there’s no litigation at all, and that removes some of the pressure that comes with court dates. It can work both ways.

Caroline McNally  29:21
One of the challenges, I think, of the mediation process, is the voluntary nature of it, because I think everybody is leading busy lives, and particularly if you’re dealing with finances and you’re having to deal with your disclosure, I can understand, frankly, people would prefer not to have to do the homework, and if there’s no court timetable in place, sometimes it’s a bit difficult to get parties to engage in that. And so how do you find that you manage the challenge of that?

Giles Surman  29:54
Mediation is voluntary. People are there of their own free will. They’re spending their own money. I think the probably the best answer to that is, what is the alternative? Your relationship, your marriage, is breaking down. You have got to deal with arrangements for children, if you have children. You’ve got to deal with your disentangling your finances. And how are you going to do that? Can you do it by speaking directly to each other? Maybe wonderful, if you can, but you need, you need to sort it out.

Caroline McNally  30:35
Can the mediation process be used in cases where finances are complex? So one typical scenario would be where one party owns a business, and it’s going to be a real difficulty to put a value on that business, is that, is it still possible to mediate a case like that?

Giles Surman  30:54
Absolutely in fact. I mean, there are… finances can be very complicated indeed. There can be complications on the wealth generating side, as you’ve mentioned, businesses, small businesses, very large businesses, where there are all sorts of caveats around the shareholdings being transferred, restrictions on sale, can only sell to other family members and so on. There can be trusts either in Hong Kong or in various other jurisdictions around the world. It can be very complicated indeed on the wealth generating side, it can be very complicated on the outgoing side, it can be complicated around issues about tax, particularly if there’s multiple jurisdictions involved, I would say that actually, if the finances are complicated, you are better off trying to sort it out yourselves, because if you end up in litigation by the nature of the fact that your finances are complicated, It’s going to take longer, and you are less likely to get a judgment that takes account of tax planning, multi generational wealth and so on. The there just isn’t the jurisdiction that the judges have to look at the much larger picture, which you as individuals will be able to do if you’ve got complicated finances.

Caroline McNally  32:22
And one of the benefits of the mediation process when there are complicated finances is that you can sit across a room and listen to somebody explaining it to you, which is a lot more helpful than actually reading it in the court documents, which we have to do all the time. And you know, I never ceases to surprise me, how you can receive a letter but not actually really understand what was trying to be explained in the letter. So to sit there, face to face and actually listen to the explanation from somebody can be incredibly helpful.

Giles Surman  32:54
It’s amazing how many times we’ve had in mediation an individual who’s got complicated finances, we sit down, we get the board out, we get the calculators out, and we say, right, explain it. And they go through it. It’s their lives. They give a sensible, rational explanation of it, which is questioned, of course, it’s reality tested. It’s questioned by me or by the other party, but you’re quite right hearing that verbal, oral explanation often with, you know, an individual scribbling away on the board with, you know, sort of circles and a flow chart for this company and that company. It it. It’s so much better than putting it in black and white writing, which is difficult to understand. I mean as an aside, as humans, we fundamentally learn and understand things better in pictures, the least effective way of learning anything is through the written word. The next, more effective way is to have it explained to you and then going up slowly, up the sort of chart of comprehension. If you’ve got a good picture, a pictorial representation of something, it’s much easier to understand…

Caroline McNally  34:16
…and it’s in sort of real time as well. You can have the the explanation, and you can ask the questions rather than letters going back and forth, which might take a long time and would certainly cost a lot of money. Yes, I agree. A concern that clients raise with me is that they feel that there’s a risk that they would be pressured into signing an agreement on the spot. Is that likely to happen?

Giles Surman  34:39
Absolutely not. I make it a real point, and I think most of my fellow colleagues as mediators do the same, which is obviously the mediation agreement will have clauses in it saying, you know, there’s no duress. I’m of sound mind. I’ve taken legal advice, or at least I’ve had the opportunity to take legal advice and, um, but I also now, as a matter of course, and I’ve done this for the last few years, is we circulate a draft, and I put into the agreement that it’s been circulated for seven days or something before somebody signs. It’s, it’s very these are very important decisions that people are making that sometimes have a very long tail, again, particularly if there’s children or complicated finances or both, these can have tails of 5, 10, 15, 20 years. And so it’s very important that people have an opportunity to sit and think about what they’re doing, and I encourage them to do that.

Caroline McNally  35:39
Another common concern is that mediation is pointless because it’s not binding. What happens after the parties sign the mediation agreement?

Giles Surman  35:47
Well, it’s, it’s a very good question, in my view, and I think there’s good recent legal authority on this, it is binding provided that the mediation follows, you know, the right path and pattern, and provided that the mediation agreement is drafted in the right way, then actually it is binding. And there’s a public policy element to this as well. Is that the courts will bend over backwards to try and make sure that agreements that people reach of their own volition, provided that you know, they’ve had proper legal advice, or an opportunity to have legal advice, provided that, as I say, certain you know, formulaic things are complied with, then the courts, the public policy, will enforce them.

Caroline McNally  36:42
I mean, one of the fears that I think people have is that they think that the mediation process is being used by perhaps somebody in a more dominant role, to hide their finances.

Giles Surman  36:51
I think I can understand why people say that, and there’s certainly what I often say to parties in mediation is that you have a right to expect full and frank financial disclosure from the other party, and if this matter is being litigated, then you are under a duty and obligation imposed by the court to provide full and frank disclosure. If it’s not yet in litigation, then that’s coming down the tracks at you. But the other thing, I think, is this, is that if, if there isn’t sufficient disclosure, then actually the the conversation will dry up and it will go nowhere. But even if it did result in an agreement, which it’s unlikely to then actually the agreement can be attacked on the basis that somebody was hiding something. So, you know, you’ve got various problems along the way.

Caroline McNally  37:52
And I often say that a bad agreement, and you’ve explained there what I would regard as a bad agreement is actually worse than no agreement.

Giles Surman  38:00
I agree there are certain cases. I mean, we’re sitting here talking about mediation, which I’m a great proponent of, not least because I’ve spent over 30 years in the court, and I can see the damage that it does to relationships, relationships that you need to maintain, again, especially if you’ve got children. But there are cases which, frankly, if you cannot reach an agreement, that’s fine. There may be a whole variety of reasons for that. Well, then go and litigate it. Have your day in court, get a judgment, and that’s perfectly respectable.

Caroline McNally  38:39
If parties wanted to appoint you as the mediator, what’s the process for contacting you? And is that process important?

Giles Surman  38:48
The process is important because it’s one of the key elements of being a mediator, is impartiality and anything that gives the sense that somehow I as a mediator is less than impartial is not good, and especially at the start. So you know, I very often get contacted by one or other solicitor about mediation, and sometimes I’ll get an email out of the blue from somebody who approaches me, I instantly reply. Well, I don’t instantly reply, but when I get round to replying, I always say, please send me an email which includes your partner, spouse, whoever it is that you have the dispute with, and then I will give you information about the process and how it’s going to work, because it’s very, very important that there is impartiality. And it’s always seen to be impartial. It’s a bit like that old adage about, you know, justice may must not only be done, it must be seen to be done.

Caroline McNally  40:00
No, and I remember that lesson from my junior years. I thought I was being very helpful by contacting the mediator. And I just reached out to the mediator simply to ask whether they were available and what their what their available dates were. And then that mediator was excluded because the other side said, well, you know, clearly they’re not neutral. I learned my lesson.

Giles Surman  40:25
That’s one way to conflict me out, I suppose.

Caroline McNally  40:29
We’re moving towards the end of our discussion, but let me ask, do you enjoy mediating?

Giles Surman  40:34
Yes, I do. And I say that without any hesitation at all. I find it I do find it challenging, one I think needs to be very patient, but it’s much more constructive and positive than court. You know, when I’m not mediating, I’m down in the courtroom and I’m representing a husband or wife or partner. And I love going to court. It’s what I always wanted to do, and I really enjoy it, but it can be terribly damaging and very destructive, and mediation is is much more constructive. You’re looking, as I mentioned earlier, you’re looking, of course, you’re looking at the past in the sense of, how did we get where we are today? So what’s the present situation? And then how are we going to move this forwards? How are we going to create a future environment for everybody involved that is going to be as positive as possible within the confines in which we’ve got to work.

Caroline McNally  41:33
We could carry on discussing I’ve got so many more questions for you, but we’re going to end but I have a final question, which is that I hope that this podcast will be listened to by those interested in law, perhaps considering mediation or by lawyers, perhaps thinking of training as a mediator. Do you have any advice or any tips for them?

Giles Surman  41:53
Patience, a real interest in people, and you need a certain degree of empathy you’re seeing people at a, really, usually, a very low point in their life. There’s elements of trauma. There’s certainly elements of grief. And if you’re not interested in people and how they operate, and then, then, don’t be a mediator.

Caroline McNally  42:24
There’s a real psychological aspect to it, isn’t there?

Giles Surman  42:26
Oh, gosh, it reminds me of when I was standing in court one day, and I think every party and all three or four children had a psychiatrist and a psychologist, and I said to the judge, Your Honor, I’m the only person in this room who doesn’t have one. Oh, and probably you judge to which he or she replied, Yes, well, I think we both need one as well.

Caroline McNally  42:50
Giles, it’s been a real pleasure exploring this topic with you, and I hope that we’ve provided some food for thought for anyone going through a family dispute who is looking for a constructive approach to resolving the differences. Thank you.

Giles Surman  43:03
Thank you very much indeed. Caroline.

43:07
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