Monthly Archives: January 2014

Contents, Totems and Ginger Jars

“It’s Mine!”

Dawn: “Couples often have difficulty agreeing who has what of the contents of the house.  Yet lawyers and the Courts will very rarely want to get involved in the division of contents, simply because the cost of arguing over such things often exceeds the value of the contents by a very considerable margin.

Mary: “One solution might be to go round the house with coloured stickers taking it in turns to choose, with a friend to help you – and a glass of wine! This debate can cause huge bad feeling. There’s no special “right answer”, just what people work out that they can live with.”

Dawn: “When couples can’t agree the division on contents, if pushed, a Judge may order the sale of everything, or that they bid for what they want. Why do some people struggle so much with this?”

Mary: “Many reasons. They have exhausted compromise or they’re afraid of the waiting void, the silence.  After years in a conflicted relationship, people may struggle to leave that conflict. Also, often they simply can’t bear to feel they might lose the last argument!”

Dawn: “So … they could sort it out, but unconsciously they don’t or can’t you mean?”

Mary: “Yes, but the conflict has to go somewhere and attaches to things of which the worst may be totems or ginger jars (a.k.a “this is our ditch it and we will die in it”)

 Totem Pole

Dawn: “You must explain that!”

Mary: “Totems or ginger jars are often a symptom of subconscious, deep psychological or emotional aspects of a relationship.  A totem is often some legal principle like the “clean break” on spousal maintenance or inherited property, but couples can get completely hung up on those issues.  There are accustomed ways of dealing with them and it is best not to resist the conventions, but none of that matters to them – they are implacable! A ginger jar often has no value and no legal or practical significance at all, but it becomes infused with immense importance – granny’s old photos or the children’s Monopoly.  When people look back it won’t matter, but it matters immensely at the time.”

Dawn: “I know what you mean – people can be totally adamant about something relatively unimportant and the fact that there may be accepted ways of dealing with it just don’t matter to them.  Nor do they care they’ll spend more arguing over the principle than it is worth. People may cling to their ginger jar until the death.”

Mary: “OK – but some people need a ginger jar, it’s the last argument no one can lose! I tell people in advance if I think there’ll be something they can’t agree – then when we get to arguing over the food mixer, after everything else is sorted, they may even see the funny side and that is a good result!

Mediation and the Law – a big change is happening

When businesses and families have serious rows everything can seem insoluble and legal action may follow.  However, emotions and old grudges may cause a dispute that has nothing to do with the apparent “legal problem” everyone thinks they are arguing about. For example, I mediated a dispute between a spouse and the siblings of an elderly patient with dementia, about who should spend what time with the patient and control his care and welfare decisions. The spouse was distraught and felt threatened at the demands of the sibling group, who had little trust in her.  This was resolved in one day after nearly a year’s legal wrangling, court proceedings and after legal costs of over £30,000 had been spent.  This was not about legal niceties – there was no dispute about money or the law.  It was about grief, loss and the human tendency to displace impossible grief into something controllable, like a big row over something.

The only option for lawyers is to sift the evidence and translate it into a legal narrative – that is their role.  The difficult relationship between people, their struggle with each other, their relationships – that is often the real problem.  A trial or solicitors’ letters can be like amputating a leg, because someone has an infection. It’s as much use.

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So imagine a huge row – about a will, a sick relative, a business – or a commercial dispute between people who work together, or about a contract – wherever there are people – there will be disagreements.  It is human nature.  Each participant comes at it with their own interpretation of the “truth” with their own beliefs, which tend to be re-enforced through debate, as people don’t want to back down. The conventional, legal ritual inflames the conflict drivers of the dispute, so it escalates.  The Law concerns itself with the evidence and legal issues – but those are often not what matters to people. Mediation reaches the conflict drivers, the beliefs and misunderstandings that fuel disputes. Mediation is far more likely to resolve the argument, as it deals with a far wider range of issues than the law can.

Given the success of mediation at sorting out disputes, it is a wonder it isn’t a first choice for anyone with a possible court application, but it hasn’t been so far. This is because the allure of court is that the judge will agree with you and the other person will be found to be “wrong” or “at fault” People want to be found to be “right”, it is much more appealing than a settlement. The problem is, usually both parties think they are right and the law of averages says half must be wrong!

The court costs are huge, they frequently dwarf the financial value of the issue being mediated – then everyone loses out.  The court timescale is long, but by the time the proceedings are under way, it can feel there’s no way out. However, since April the courts are increasingly directing people to mediation. The tide is turning in favour of fast and affordable, non-adjudicated resolution in mediation for all disputes, whether commercial or family. Our experienced specialist mediation team are proud to be mediation experts.

Ending a Marriage Well – It Can Be Done

Ending a marriage well is important – do it kindly and don’t make it worse with a bad ending.

The reasons marriages end in divorce are many and various and often a couple won’t agree why their relationship has ended, even when they do agree it is over.

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The wording of the divorce petition may feel really important – it gives the official reason for the break-down – and unless you have been separated two years and agree to divorce, or have been separated five years, when no agreement is needed –you are left with a fault based petition. This means adultery or unreasonable behaviour on the part of the respondent. The petition only needs to have enough detail to get a divorce and ideally the person reading it will recognise the incidents as a fair account of events.  The best petitions are rather sad and very short, but there does have to be enough for the judge to grant a decree within the rules.

If you can’t agree why you are getting divorced – then you can mediate the petition grounds with us at Focus Mediation and end your relationship well and with kindness.  Most people just want to sort things out and we facilitate that at a modest cost, which you share (that is if you don’t qualify for legal aid). And remember, the reasons for divorce normally have no effect on your financial settlement or arrangements for your children

Save the Children

When couples separate, children are often caught in the cross-fire. When contact is stopped as a weapon, children can suffer too. If they are additionally saying different things to each parent, they feel the need to appease and comply and have learned what they feel and want doesn’t matter. This is not a good outcome for children.  Court applications are up between 27% to over double in some courts since this time last year. Meanwhile, family mediation – for which legal aid is still available – has fallen off a cliff. Why? It’s been shown again and again it produces better outcomes for children and families. The Court is getting us to mediate at Court with two other mediation services on the First Appointment of these Children Act Applications.  It would have been better and cheaper to mediate before proceedings are issued, as is required by the pre action protocol, which is being ignored.  Many of these cases are mediated successfully and then the whole Application was unnecessary, unless to bring a parent to mediation to talk it over.

Why Focus Mediation?

  • We are accredited experts, dedicated to mediation
  • We use experienced  lawyer mediators for financial cases
  • We have specialist mediators who can see your children so their wishes and feelings can inform your decision-making
  • We offer legal aid if you qualify financially

Most people just want to sort things out and we facilitate that, at a modest cost – which you share if you don’t get legal aid.

Business Disputes

Business Disputes

Disputes can paralyse a department or even the whole company, diverting decision-makers from the key tasks of doing deals, creating wealth. The cost in money and reputation can be incalculable.  A Focus Mediator can help restore equilibrium swiftly, confidentially and with the minimum of expense and disruption.  The key aim is to end the haemorrhaging of time and money as quickly and productively as possible.

Focus Gets Results

Mediation usually only takes a single day, and can be set up at short notice.  Where relationships have broken down and negotiations failed, a neutral mediator operating in a private, “without prejudice” environment aims to broker a deal that all parties agree is better for them than the fight.  Focus mediators achieve that in over 90% of cases, with parties signing binding settlement terms there and then.  The process even brings many of the rest close enough that they settle soon after.

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Business Disputes and Litigation

Disputes often grow in complexity as the lawyers jockey for tactical advantage, and extra parties (such as insurers) may become involved.  Before you know it the legal costs can be one of the biggest issues!  Mediators start where you are. Only a mediator can discuss each party’s hopes, fears and objectives with them in confidence.  No judge, arbitrator, adjudicator or party representative can ever do that.  It’s one of the main reasons mediation gets results. And mediated solutions can be more creative and user friendly than awards imposed by the courts, arbitrators or tribunals.

Problems, Problems

Traditional methods of resolving disputes often drive parties further apart long before any resolution is possible.  If you’ve been through the stage of snarling at each other, and that didn’t bring the opposition to heel, where should you go next?  Since April 2013 litigation procedures have been reformed to encourage and incentivise parties to use ADR (Alternative Dispute Resolution) including mediation. Failure to do so can have adverse costs consequences, even for parties who go on to win their case.  Proposing mediation, far from being a sign of weakness, can put your opponent on the back foot.

How does a business mediation work?

We will help you choose the right mediator from our panel and a day is set aside for the mediation. A fixed fee is paid up front, usually by the parties equally. Pre-session process is kept to a minimum – usually just a short position statement from each party, to ensure the mediator understands the background.  The mediation day usually starts with an opportunity to explain your case in a group session, all together. Most of the day is spent in separate rooms with the mediator shuttling between you. You say what you want relayed, and what is to be held confidentially by the mediator. This process helps the mediator see areas where agreement may become possible.  The objective is a binding settlement, signed on the day.

Usually your mediation can be held within two weeks of your contacting us