Monthly Archives: February 2018

Butting Heads & Finding Oil

A crucial rule in mediation is ‘don’t argue over positions’. Most people engage in positional bargaining when they negotiate – ‘I won’t pay a penny more than £100’, ‘Sack my lazy colleague or I resign’, ‘You must be home by 9pm or you’re grounded’. The trouble with positions is that we are so busy defending them that we lose sight of what it is we actually need. Does our original position serve us well? Does it meet our needs and adequately resolve all of the issues? It’s hard to back down from a position and save face and so often people continue defending it come what may. Roger Fisher & William Ury wrote the acclaimed book ‘Getting to yes – negotiating an agreement without giving in’. Within it they reported real life situations when positional negotiations escalated conflict. In the following example, it almost caused bloodshed!

Butting Heads and finding oil focus mediation blog

Farmers v National Oil Company of Iraq

After the fall of the Sadam Hussein regime, displaced farmers pooled their limited funds and leased farming land and invested in planting one large crop. However, the National Oil Company subsequently discovered there was oil under the land. They served the farmers with notice to leave immediately. The farmers refused. The Company threatened them with the police, but they wouldn’t budge. The army was called in and the farmers acquired guns and said they would fight to stay. At this late stage a newly trained negotiator asked if he could intervene. He asked the farmers when their crop would be ready to harvest. They said in 6 weeks and that the harvest was all they had left in the world. He asked if they would be prepared to leave after the harvest and they said yes. He asked the Company when they intended to extract oil. Not for 3 years they said but they needed to carry out tests prior to that. He asked whether the harvest would impact this. The answer was no. In fact the Company also had no objections to the farmers farming a small piece of unused land in the future, providing they vacated the remainder of the land after the harvest. Further, they had always intended to offer the farmers well paid work on the oil project and accommodation. However, the conflict escalated too quickly to even raise the matter.

The mediator averted bloodshed by enabling the two groups to consider what mattered most to them and what didn’t. He was the only person who had thought to ask them questions about what they needed and what they could barter with. The concessions made by each side helped create peace but their respective objectives were also well met. The farmers could harvest their crop, grow further small crops and obtain well paid work & accommodation with the Company. The Company could carry out their checks on the land in the knowledge that the farmers would vacate it and they would have a ready made workforce. It was a win/win solution and a peaceful solution was negotiated. Principled negotiations often leads to objectives being met and improved communication and respect.

When couples separate they often become positional because they feel hurt, unheard or fearful about their future. They hold their position so they don’t get trampled over. As Fisher and Ury illustrated, a mediator can enable people to move away from their positions and focus on their needs. Only then can their needs be appropriately met. People often believe it’s impossible to resolve their particular issues – they have already tried hard and are stuck. However, as traumatic as divorce and separation is, their path is often well trod and an impartial mediator can help them to look at the bigger picture and focus on the future. The mediator will have experienced similar issues before and will have a wealth of experience to bring to the table. A mediator will ensure concerns are identified and carefully listen to each party. It’s then that there is often enough movement for positive change.

Call us on 01908 231132 or Email: info@focus-mediation.co.uk for further information or to book a Mediation Information & Assessment Meeting (MIAM) (11 Locations – Milton Keynes, Bedford, Broxbourne, 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 

Doing nothing is a choice – with consequences you might not choose

When faced with a crisis such as separation, people struggle to cope. They may refuse to talk about the difficult issues that need to be sorted out. They may be in complete denial about the realities of their situation. It may be really hard to tell friends and family –it makes it all real.

Doing nothing is a choice - with consequences you might not choose

Grieving

The grieving cycle kicks in with the prospect of so much loss – and it starts with denial – this is not happening. A man once returned home to find his wife and children gone and his home empty. There was just a camp bed on the floor and a pillow and duvet on it. He went to bed in it and slept – perhaps he thought it would all be all right in the morning. His instinctive reaction was denial.

However bad the relationship, even if you ended it – there is loss and the stages of grief. People are so frightened of what else they will lose – children, home, money, security, even part of their identity, the couple part. Anger and blame can be overwhelming.  Sorting things out can feel impossible – all suggestions for the future may elicit a categoric ‘No!’ Anger may make you fight, litigate to try to ‘win’ and this can cost more than it’s worth and then everyone loses. Doing a deal with your enemy is anathema – and that’s what mediation means, so no, it is not something you want to do. You are at your most vulnerable and least able to cope yet there are all these critical decisions to face. You may want to make them wait, not face the choices, do nothing, hang on to your life as long as possible. Sometimes delay results in a lot of other problems that makes sorting things out eventually even harder. Examples include children suffering avoidably, increases in family debt, mortgage default or serial rows over anything and everything – everything gets worse than it need have done.

Moving forward

Research on decision-making by psychologists tells us decision-making is often hap-hazard and flawed. Especially if motivated by emotions, we do not make our best decisions when we are upset. This is where mediators can help. Trying to do it alone is like trying to do your own dentistry – you cannot see the problems and you’re not a dentist. Family mediators understand the situation and have helped thousands of people to sort things out and start re-building their lives. Yes, it’s tough, but it’s a process for making your best decisions, easier than fighting, it costs less and it is just as fast as you want.

Family mediation is flexible, it starts where you are and wraps around you to help you cope, helps you to see the real issues and work out what to do for the best in a rational way. It is nothing like counselling, it is very practical and future-focussed. Good mediators listen hard – and support you both to make difficult decisions, working through all the options, challenging and reality testing your plans. Yes, effective mediation can feel tough. It brings you face to face with the realities of your situation fast – but isn’t that best? Get it over with? Most people say ‘I just want it all sorted as soon as possible.’ That means mediation. Court applications take up to 18 months, sometimes longer. The legal process is rarely fast. Mediation regularly helps people bring litigation and negotiations to an end with Consent Orders and agreements.

So when you’re fed up with it all – remember it is never too late to mediate and do a deal and doing nothing is a choice that may deliver a poor outcome.

Call us on 01908 231132 or Email: info@focus-mediation.co.uk for further information or to book a Mediation Information & Assessment Meeting (MIAM) (11 Locations – Milton Keynes, Bedford, Broxbourne, 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 

Mediation – your questions answered

What is Family Mediation?

An impartial mediator helps couples agree all arrangements for separation – whether regarding children, property, finance or pensions.

Mediations Questions Answered Focus Mediation Blog

Is Mediation compulsory?

No. Since April 2014 it’s compulsory (there are exemptions) to attend a Mediation Information and Assessment Meeting (MIAM) before making an application to court regarding family finances or child arrangements. There is no obligation to mediate thereafter, but many choose to do so after hearing about the benefits of mediation and the associated costs and potential delays at court.

I know my ex will refuse to attend a MIAM…

Mediation is voluntary and your ex can’t be forced to attend a MIAM or to mediate. However, clients who believe their ex won’t attend are often surprised when after speaking to a mediator, they agree to do so. Even if mediation does not proceed, our lawyer mediators provide considerable information at MIAM (including an info pack), and clients tell us this is very helpful. Mediators are trained listeners and clients benefit from feeling heard and understood. The process helps people to consider what they need to prioritise so they can positively move forward.

Do I choose between instructing a solicitor or a mediator?

No, a mediator can give you helpful legal information but they can’t advise you about what’s in your best interests as they must remain impartial. Your solicitor will advise you and is often a great support. Isn’t that double the expense? No, mediation works very well alongside legal advice. The advice often reduces the number of mediation sessions as you feel confident about what options and proposals you can agree to. Many clients like us to send a record of session to their solicitor so they are kept up to speed. In financial cases your solicitor will help make mediated proposals legal binding. Mediation and legal advice is a fraction of the cost of legal fees for litigation.

How can I make sure in a financial case that I get all the information I need about assets?

Our lawyer mediators are well accustomed to ensuring that the legal process of ‘disclosure’ is completed properly. They will help you understand your whole situation. The standard of disclosure is no less in mediation than court – plus you can ask each other questions face to face about any anomalies.

How will I know what the options are? 

Our lawyer mediators give first class legal information in a neutral way about complex cases involving pensions, businesses, companies, tax and similar issues. They will help you explore all available options.

What if my ex if more vocal or forceful in mediation?

Mediators are trained to cope with power imbalances. They ensure both of you are heard and the process is designed to maintain a safe environment and a fair balance between you, as well as ensure you both understand all the financial information.

Will I get the best deal possible or can that only be achieved in court? 

The best deal is really what suits you and your family. The mediator will help you generate and explore options. If you attend court you may find that any ‘win’ (which can never be guaranteed) is lost due to the   legal costs in securing it. The court aims to meet the needs of separated families and so there are rarely clear winners.

We have already started proceedings. Does that matter? 

Mediation is a useful aid to resolving disputes at any stage, whether before or after proceedings have started. Court proceedings are frequently resolved by agreement. Mediation is a great aid to that end.

How long does it take?

Each session lasts about 1 1/2 – 2 hours, and it usually takes between 1 and 5 sessions to resolve the issues. The number of sessions depends on the range of issues and the complexity of your affairs. The introductory session lasts about an hour.

Are proposals in mediation binding?

No, not in conventional family mediation, but you take the proposals to your solicitor for a binding Court Order or Separation Deed if that is needed in your case. Children’s arrangements don’t have to be made binding, but we could draw up a co-parenting plan, which you can sign if you wish.

In 1 Day Family Mediation, your solicitors are there at the end, not all day, to make your agreement binding.

Is the mediation process hard?

Yes, sometimes it can be difficult, but it is usually easier than the alternative of Court proceedings. Separation is painful, and sorting things out is not always easy, but it has to be done. It is a type of facilitated DIY divorce and separation.

Is it quick?

Mediation is usually as quick as clients want, with sessions arranged at weekly intervals if you wish or even in one long session if everyone is prepared (“1 Day Mediation”). However, it may take time to assemble the necessary information and sometimes you may benefit from a period of reflection between sessions. A mediated outcome will almost always be achieved before your case could proceed to a Court hearing.

Is mediation always appropriate?

Not always. Both parties have to want to take part in mediation – it is voluntary. Also, if there is heavy domestic violence, it may not be possible to mediate. The mediator will make a careful risk assessment.

I don’t want to meet my ex – do I have to?

We can offer shuttle mediation, with you in separate rooms, in appropriate cases. We would talk to you about the implications of this.

Call us on 01908 231132 or Email: info@focus-mediation.co.uk for further information or to book a Mediation Information & Assessment Meeting (MIAM) (11 Locations – Milton Keynes, Bedford, Broxbourne, 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 

£2m Divorce Fight Dubbed a “Scandalous Waste of Time” by Judge

Mr Justice Holman said that Michael Parker and Barbara Cooke who are locked in a bitter and expensive court battle “Had lost touch with reality.” So far the costs of their financial proceedings over their divorce settlement were £2m from a total of £6.6m in assets, so nearly a third. The likely costs of their trial are estimated at a further £200,000.

2M Divorce Costs Focus Mediation blog

“If there’s nothing left at the end there’s nothing left,” said the judge.

What is going on for couples like this who simply cannot agree a settlement and seem hell-bent on pressing on with litigation, the costs of which are completely disproportionate to the value of their assets? Let’s look at some possibilities based on experience of other such cases and listening to exchanges in some mediations, where people are trying to end runaway litigation:

  • Neither can back down; they feel they must ‘win’ and have the last word, win the last battle even if this means they both lose out.
  • They are stuck at the angry/furious stage of the grieving cycle; everyone has to work through this at some stage – litigation can keep you stuck there for some time.
  • Demonisation of each other and each other’s representatives; believing the other person’s position is ‘mad’, ‘unfair’ or that there are hidden assets to be discovered.
  • Temporary insanity; I’ve heard people refer to this – saying afterwards ‘I think I went a bit mad.‘
  • 75% of litigants think they will win – so a species of hope springs eternal.
  • The adversarial system itself – which bewails such costs and ticks off litigants – but does nothing to stop it, despite court rules saying that costs must be proportionate to value.

Sadly such cases are all too common in divorce and in general civil cases. What about:

  • The dispute between two neighbours about the costs of £4,000 worth of drain repairs in a garden – costs £300,000.
  • A case mediated successfully by a Focus mediator where previous litigation costs were about £64,000, over noise between two flats, where the cost of sound-proofing was only around £3,000.
  • Countless divorce cases where costs exceed the margin of difference between the parties by a considerable margin.
  • The £3m divorce where costs were £930,000.
  • Numerous cases Focus mediators have settled where costs have been say £20,000 or £40,000 and the case settles with no money changing hands or with a small payment.

And so it goes on. Our justice system is dysfunctional in that no one using it imagines this can happen. If people knew where they were going to end up they’d probably be much more focussed on mediation at an early stage to resolve their dispute. Which is the point really. Our mantra is ‘Stop the madness of runaway costs and mediate – it’s never too late for an outbreak of sanity.’

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