Monthly Archives: June 2015

Controllers – Do They Come in Pairs?

Often in mediation we see the couple separately for their first meetings. This gives people an opportunity to be very frank and open about their situation. Often one will say “S/he’s a controller, and I’m unsure I can cope with mediation!” Then the other person comes and says the same. What might be happening? Each clearly feels they’re not getting their way enough. They have come to resent and oppose the control or influence involved in being part of a couple. Whether this is reasonable or unreasonable as a matter of opinion.

So for example, if Harry went out alone to the pub every night, their partner might object, then Harry might complain of being controlled, but who would be at fault?

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What if John complained Sally spent too much money on shoes and the family had a huge debts and Sally had 1000 pairs of shoes? Sally might say John was controlling, if he tried to stop Sally buying shoes, but would his actions be inappropriate and who would be at fault?

These exchanges are the overt text, the surface conversation. What is really going on is what I call the subtext and it is the subtext that is so interesting. It is a matter of opinion whether there are inappropriate control issues as opposed to an expectation of a reasonable conversation about something important with the person with whom you share your life. A conversation might be initiated by the so called controller in the hope of influencing the other person to change behaviour which they feel is threatening the foundation of the relationship. Whether this attempt to influence or control is reasonable or unreasonable is depends on your point of view. If the relationship is strong these exchanges are productive, useful and keep the relationship on a sound footing. If the relationship is struggling, the exchanges may become aggressive, negative, recriminatory or  accusatory. Things may have gone too far for the couple to put things right, however much talking they do. Perhaps reasonable exchanges about what is fair and right in a relationship needed to be had years before, before the situation became irretrievable. So influencing your partner through rational discussion is vital to a healthy relationship. This is appropriate and to be expected.

However, it is easy to think of situations where one person is seeking to control the other inappropriately. Examples might be trying to prevent them seeing their friends and family, to cut them off from other relationships, force them to eat, drink or dress in a certain way, or control their conversation, thoughts or beliefs. These would be issues where controlling behaviour would be inappropriate and usually wrong. So accusations of control need exploration and not just to be accepted at face value. We need to unpick the behaviour behind the assertions and ask what is really going on.

So people should change their understanding of the word ‘Control’ and dig deeper. They should think about what is really being asked, is it a reasonable or unreasonable request?

At the point where the so called controller says, in answer to a question about a request: “OK, it doesn’t matter, it’s not important.” there are two possibilities:

The first is just that it’s not important

the second is in getting close to terminal – they giving up on both on their partner and the relationship, it doesn’t matter any more. Then they may well find themselves in family mediation, quite possibly with me, saying “My ex is a controller . . . ”

For more information go to http://www.focus-mediation.co.uk

Proportionality

The costs of litigating a case should be in proportion to the value of the dispute. Official – but forgotten repeatedly.

The Ministry of Justice, the judges, everyone – says the costs of going to law should bear some sort of rational relationship to the value of the dispute. Yet this rule is frequently and flagrantly ignored. Focus Mediation frequently finds the main issue in dispute in mediation is the costs of proceedings at court. So, in one case where flat owners were arguing over noise between their flats (one flat was over the other), the costs were £62,000.   There was at the pre-trial review. The judge heard that the budget for costs to go to trial was a further £30,000 including the lawyers and the experts. The agreed costs of the works of noise proofing between the flats was under £4000! The costs had become the issue. If one party could ‘Win’ then the other would lose twice, they’d .have to pay all the costs. The judge had little paddy and said they had to mediate. Now this is unusual, as actually the courts have no power to force people to mediate, but he was incensed enough at the flagrant breach of the rule of proportionality on costs to send everyone away for mediation. The Focus mediator settled the case. One flat owner bought the other’s flat, not even a result the judge could not have imposed he’d wanted to. This is a classic example of conflict having a life of its own, of the disputants losing the plot and ending up in a ridiculous situation, where their litigation costs were the main issue. There are many reasons this can happen.

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The lawyers may advise that they cannot advise as to whether someone’s going to win the case or  not, until they have seen adequate “disclosure” of documents, witness statements  and expert evidence, enabling them to advise who is likely to have the best evidence and hence who will win or lose. The problem is that the cost of getting the case this far alone can be out of all proportion to the value of the case. Suddenly the issue is no longer just the liability for or ownership of the decombobulating sprocket, there is another issue – who is going to pay all the costs? Since the Jackson Reforms in 2013 there is far more pressure to mediate and a refusal to mediate can mean you don’t get all your costs even if you win. Nonetheless the number of mediations is still not rising to the levels required by any sort of rational approach to resolving court disputes. Why not?

At Focus we wonder this all the time. We think there are many reasons including:

  • The conflict has a life of its own, one or both parties cannot back down. Their irrational emotional right brain is engaged, they feel they simply must win, even though the costs make it a pointless and empty victory even if they win and they may lose but
  • Backing down is unthinkable. The identity of one or more participants is threatened by not winning or fighting
  • The adrenaline rushes of the amygdala in the brain is priming the fight, freeze or flee -a pre-historic response to conflict. The modern interpretation of fleeing or fighting the tiger can often be the ritualised combat of your chosen combat representatives, your lawyers
  • The costs may be insane but ‘It’s because I’m worth it’. This can often be the case in a divorce, where one party may want to punish the other with massive costs, drag out the fight, to try to get control of their resolution process (in their dreams, it has a life of its own). They may seek the fight for continuing connection, to delay the waiting void after it is over, the ritual of litigation may be an expression of their grief and loss, there are so many reasons.
  • A completely mistaken understanding of likely court adjudicated outcomes. For example, the divorce client arguing over a family pot of no more than £500,000, whose London lawyer had advised her that their hourly rate of £600 was worth it, as they would get her such a good settlement the extra money would pay the costs. Again, in your dreams! However, by the time the truth dawns, it is too late.
  • In some cases there may be a conflict of interest between the lawyers and their clients over costs. The National Audit Office reported on this in their report into Family Mediation in 2007. They found lawyers in some instances have a contrary interest to their clients to earn fees and that resolving a divorce by mediation was 75% quicker than going to court and cost a fraction of litigation. This isn’t true of many lawyers, who do refer to mediation, it is just that many don’t or leave it too late to save much.

So what can you do? Like many things the answer is both simple and hard to do:

  • Have a sense of proportion, work out the value of what you are arguing over. Set a budget for the costs of a sensible percentage of that figure and resist exceeding it. 10/20/30%, something rational.
  • Keep proposing mediation, even if you go to trial and lose, if the other person refuses mediation, you may benefit on a costs order. If you mediate you may well settle the case.
  • Pocket your pride, be ready to engage in resolution and move on with your life

Collateral Damage. The Hidden Cost of the Courts.

Marrying the Same Person after Divorcing them

Tech billionaire Elon Musk remarried wife Tallulah Riley. Their first marriage was in  2010, they divorced in 2012, but then re married in. July 2013, then filed a second divorce at the end 2013. Liz Taylor, Pamela Anderson and Mel Griffith, all remarried their former spouses. Why on earth do people do this?

01_R04ELS_1120075kWell, perhaps it isn’t as mad as it sounds. Although these celebrity remarriages usually ended in a second divorce it isn’t always the case. Apparently research into 1000 couples found 72% of remarriages were successful. It seems that the power of their shared history, children and lives carried a lot of weight. Many regret their divorce and are brave enough to try and put things right, try and put the clock back. This is hard, as it is a very public admission of a very serious mistake, but the stakes are high and it is well worth facing down the comments and criticism to try and live the right life and put right a big mistake, if you’ve made one.

As a mediator I sometimes get the chance at the end of a mediation, to ask clients I have got close to if they could go back in life, would they change anything?  This is especially interesting where people are divorcing for a second or subsequent time, as they have often considerable experiential insight into their situation. What they often say is they regret their first divorce most. They wish they had worked much harder at their first marriage. Some men especially think they divorced and remarried younger women very like their first wives and wish they had stayed put.

The biggest problem is behaving rationally when in the throws of the grip of a passionate affair. It seems inconceivable that it will end or there would be any way back to their old relationship. Also once everyone knows what has happened there is a weight of expectation that the marriage is over and will end. Countering this expectation and the powerful emotions of the new relationship becomes almost impossible, even if at some level there are doubts, regrets and a feeling it shouldn’t have happened. Perhaps we are too quick to be off with the old and on with the new. Perhaps we should hesitate more and take much more time before divorcing. The present divorce laws make it worse. The process requires someone to be at fault, to get a divorce in under two years. Supposing we stopped all that and made the process administrative, something that takes place over time. The questions might involve asking each person if they are certain the relationship is over or might be saved. It might help pick up those cases where actually the relationship isn’t over at all. That would be worth some effort.