Monthly Archives: January 2018

Different Types of Mediation – a Navigation Guide

  • Non – Binding Memorandum of Understanding in Family Mediation

Children agreements don’t have to be binding and because families change, such arrangements can always be changed in future to meet circumstances as they arise.

Financial agreements made in multi session family mediation are made without lawyers and are not binding under protocols and Codes of Practice established by the Family Mediation Council or FMC. A professional family mediator will have completed a portfolio of work and achieved the coveted Gold Standard Accreditation by the FMC –  FMCA. They will not endanger their registration or professional reputation by facilitating binding financial settlements for clients and are barred from drafting a binding Consent Order or Deed in connection with finances.

Types of Mediation

  • Binding Consent Order or Tomlin Order in Civil Mediation

At the end of a civil mediation clients or their lawyers draft a Binding Tomlin Order to conclude any civil court proceedings or a binding agreement if there is no litigation, and the mediator may help. Mediators who have completed the civil mediation training will be registered with the Civil Mediation Council (CMC) and work to a different Code of Practice and protocols from family mediators.  Under the CMC code it is expected that the outcomes of mediation will be binding. Lawyers often attend such mediations which typically take a day with clients signing a binding agreement on the day.

  • Hybrid Mediation

There is a cross-over area between family and civil mediation where great care must be taken. It is worth remembering there are reasons family mediation outcomes are not binding until after there has been an opportunity for reflection, legal advice and ‘cooling off.’ Couples are not always equal partnerships freely entering into agreements.  There may be abuse, issues of control, learned helplessness and violence. A civil mediator will not normally be trained to identify such matters and address power or information imbalances, which under their code is not their job. A family mediator, often from a family law background, will be accustomed to giving clients substantial neutral legal information. They may have couples who want a binding agreement in a day. They are well placed to assist with this up to a point, within the constraints and protocols of their mediation back-ground.  They may use their training as a family and a civil mediator, as they should be both. Then they are able to navigate both systems of mediation and differing codes of practice knowledgably and with confidence.

  • One Day Lawyer Assisted (Family) Mediation – Binding

Focus Mediation has developed this way of working, which essentially uses the civil mediation agreement but incorporates skills from family mediation too. It is vital to be clear about precisely how this works:

Similarities and Differences Family Mediation One Day Lawyer Assisted Family Mediation- civil style
Impartiality Yes Yes
Voluntary Yes Yes
Gives legal information Yes No as lawyers there
Confidentiality as against rest of world Yes Yes
Holding confidences between clients No all open and no secrets held save confidential address or contact details Yes can hold confidences so far as offers and options are concerned
Sharing of factual information e.g. open financial Must be shared Must be shared
Lawyers present No Yes
Timing Series of shorter sessions over weeks/months Usually one Day mediation after financial disclosure completed
You may start with family style mediation to complete financial disclosure or resolve children matters, then swap to ODLAM First Second, to complete mediation
Type of mediation Family mediator should be accredited by the Family Mediation Council – FMCA Civil mediator should be registered with Civil Mediation Council – CMC
Nature of Outcome Summarised in non-binding Memo of Understanding Set out in binding Consent Order or Deed drawn up by lawyers on the day
Sessions Usually in one room without lawyers or anyone else; can be apart Mostly if not entirely in separate rooms with mediator going between
Bring a friend Rarely Yes
Plenary Session – where parties and their lawyers meet and set out their positions and express intentions of good faith at the start of mediation No Yes – but optional not compulsory
Those present must have authority to settle Yes Yes
Able to end or avoid court proceedings Yes Yes

In summary, the resolution of disputes requires skill, training and experience. It is important to ensure mediators have the requisite skills and training and that the best method of mediating is used for any dispute, not just used because that is the way that mediator is trained, insured and able to work. It is helpful to use a mediator with a broad knowledge and experience of Family Law especially for a financial divorce case, which is why at Focus Mediation we only use lawyer mediators for family finance cases because they can help you better. For non-family disputes Focus Mediation has a range of mediators from a host of different professional backgrounds so we can offer appropriately qualified and experienced mediators for most situations where a dispute arises.

Call us on 01908 231132 or Email: info@focus-mediation.co.uk for further information or to book a Mediation Information & Assessment Meeting (MIAM) (10 Locations – Milton Keynes, Bedford, Hemel Hempstead, London, Northampton, Oxford, Potters Bar, St Albans, Harrow and Watford). Read more about family mediation (including our client testimonials) at  www.focus-mediation.co.uk 

A positive message for children during a breakup

Driving to work on my way to mediate with a separating couple, I heard a song playing on the radio by James TW called, ‘When you love someone’. https://m.youtube.com/watch?v=0Bf3CJZ4hvg. The song is about a child’s parents splitting up. The video is cinematic and well worth a watch (please follow the link). The parents talk to their son and tell him everything will be ok. James says he wrote the song after a young drummer he was teaching told him his parents were getting divorced. He said in a statement to Huffpost, “The first thing I thought was how are they going to explain it to him in a positive way and one where he would understand. I wanted there to be a song that he could listen to which would make him feel better about everything that was going on.”

children-breakup-hutterstock_483300238

The Lyrics;

Come home early after class

Don’t be hanging ’round the back of the schoolyard I’ve been called up by a teacher. She says she can’t even reach you ’cause you’re so far. You’ve been talking with your fist. We didn’t raise you up like this, now did we? There have been changes in this house. Things that you don’t know about in this family. It don’t make sense, but nevertheless. You gotta believe us, it’s all for the best It don’t make sense The way things go Son you should know

Chorus

Sometimes moms and dads fall out of love. Sometimes two homes are better than one. Some things you can’t tell your sister ’cause she’s still too young. Yeah you’ll understand When you love someone

There ain’t no one here to blame

Nothing’s going to change with your old friends. Your room will stay the same ‘Cause you’ll only be away on the weekends. It don’t make sense but nevertheless You gotta believe us, it’s all for the best It don’t make sense It don’t add up. We’ll always love you no matter what

Come home early after class

Don’t be hanging ’round the back of the schoolyard And if we’re crying on the couch Don’t let it freak you out. This has been so hard.

The video depicts a teenage boy’s parents having a number of heated arguments at the end of their marriage whilst he watches the marriage unravel. The boy doesn’t know how to handle his emotions and gets into trouble at school. Eventually he breaks down and cries and his mother comforts him. She then drives him to see his father and watches as his father hugs him and reassures him. The message is a positive one. The reality is that 1 in 2 marriages fail and inevitably many children will experience their parents breaking up. Sometimes it is better for parents to live in separate households, as they can then be happier individuals and better parents.

It’s vital that children aren’t drawn into any arguments, confided in or asked to take sides. They need to be shielded from any hostility. The best way parents can help children to feel safe and secure is to continue co-parenting their children. That’s not easy when parents may be feeling hurt, angry and scared. Mediation can help parents improve their communication, plan their futures and find some peace. Children need their parents to do this as soon as possible so they know that they will be ok and that both their parents will still be there for them.

At Focus Mediation, we have specially trained mediators who can talk directly with children so they can have a voice and this helps them to feel heard and understood. Call us today to take the first step towards a more settled future for your family.

Some useful resources for helping children during separation:

http://voicesinthemiddle.org.uk – a website for children whose parents are separating/ divorcing

http://www.resolution.org.uk/site_content_files/files/separation_and_divorce_helping_parents_to_help_children_2.pdf

http://www.partnershipforchildren.org.uk/resources/my-child-is-worried-about/divorce-separation/how-to-help-children-adapt.html

Call us on 01908 231132 or Email: info@focus-mediation.co.uk for further information or to book a Mediation Information & Assessment Meeting (MIAM) (10 Locations – Milton Keynes, Bedford, Hemel Hempstead, London, Northampton, Oxford, Potters Bar, St Albans, Harrow and Watford). Read more about family mediation (including our client testimonials) at  www.focus-mediation.co.uk 

Truth, Half Truths, Lies and Illusions

Getting at the Truth

Family mediators help clients achieve full and frank financial disclosure when mediating financial settlements and it is the client’s responsibility to disclose fully and honestly.  Mediators are not obliged to examine the documents forensically; the agreement to mediate says so. Mostly this is not a problem, as the couple knows what their assets are. Sometimes issues arise as to the value of a business, shares in private unlisted companies, share options – a plethora of complex issues on which even family lawyers will bring in experts. Well, family mediators can bring in experts as well. If they either still are or were family lawyers, then they should know their way around all this comfortably. However, if someone is lying or failing to disclose all the assets, then mediation will have to stop until disclosure has been compelled, probably via court proceedings when the judge can order disclosure and then mediation may be re-commenced. If necessary some cases may go to trial in the hope that cross examination at trial will expose the truth. If a case settles with assets remaining hidden, then the settlement can be overturned.

Truth Lies Illusions and a mediator's role Focus Mediation Blog

Illusions, Misconceptions and Wishful Thinking – Challenging and Reality Testing

The first stage of any family financial mediation is to identify then value the assets. Only then can options for a deal be evaluated in the full financial context. Then the couple’s respective beliefs and feelings about who should have what overlay their approach to who should have what. They may believe one should have less because something or other was ‘their fault’ or that they should have more because the other wasted money drinking or gambling or because they must look after the children. People’s very understandable deeply held beliefs and feelings may or may not have any influence over the eventual outcome, however strongly felt. To move two implacable opponents from irreconcilable poles to a deal will take some effort. Yet it is what the mediator is tasked to do.

Necessarily therefore, some of a mediator’s main tools are extremely uncomfortable – even occasionally painful. Challenging and reality testing beliefs, arguments and options for settlement can fall into the ‘Ouch’ category, as does delivering unwelcome but essential legal information that a client may not want to hear. Some examples may help:

Mediator: ‘Ok Mrs X – I’m hearing you saying you will take over the mortgage if you have the house – but how can you release Mr X from the mortgage – the mortgage is over £300,000 and you are a part-time carer, surely it cannot be done? Where will Mr X live?’

Client A: ‘We’ve agreed whose having the pensions and whose having the children – she’s having the children and I’m having the pensions . . ‘

Mediator: ‘ . . but those issues are dealt with separately and the pension sharing issue is only looked at in the context of the overall assets, the children aren’t relevant to that.’

Client B ‘I know we are married – but I want a settlement based on co-habitation law, not divorce law.’

Mediator: ‘Well you’re either married or not and if you are married those are the laws that apply  . . .‘

OK – so here’s the nub of it – the more effective, knowledgeable and honest your mediator is, the more uncomfortable your mediation may be.  An effective mediator knows it is her task ‘to boldly go’ to the ravines you have been papering over – with a view to sorting them out properly. It’s no help if you let people pursue hopeless, impractical and unfair options for settlement, as they won’t work and it will fall apart after you have spent money on the mediation, which helps no one. So yes, it is the mediator’s job to help you reality-check your proposed settlement, to make sure it will work. Sometimes that busts illusions, but that was always going to happen and the sooner the better for all concerned, even if there is the odd ‘Ouch!’

Call us on 01908 231132 or Email: info@focus-mediation.co.uk for further information or to book a Mediation Information & Assessment Meeting (MIAM) (10 Locations – Milton Keynes, Bedford, Hemel Hempstead, London, Northampton, Oxford, Potters Bar, St Albans, Harrow and Watford). Read more about family mediation (including our client testimonials) at  www.focus-mediation.co.uk