Monthly Archives: August 2018

Stop the Madness! The Court Proportionality Rule must work – once joint costs reach 20% of case value litigants must mediate. Support reform of our dysfunctional justice system – Part 3 of a 3 part blog.

Parts 1 & 2 – The Civil Proceedings Rules (CPR) and the Family Proceedings Rules (FPR) govern the operation of litigation and the courts and how lawyers, litigants and judges run cases. There is already a rule saying that costs must be proportionate to case value, but whilst judges beg people to settle their cases and stop wasting money – litigants think they can’t because no one tells them how this can be done.  People do not know how successful mediation is at settling disputes and so don’t use mediation, even though it works. No one tells them how successful it is, because they are intent on the Law, the litigation, its procedures and getting the ‘right result’. Mediation is the invisible elephant in our justice system. It is gently waiting, able and willing to help people make peaceful settlements – but the environment in which it lives is stifling it and so litigants suffer.

The Right Rites Part 3 Focus Mediation Blog

Countless cases go through the courts with costs mounting to stupefying levels. Examples include:

  • A dispute between neighbours over drain repairs worth £4,000 in a garden, where costs exceeded £300,000 and became existential with the fight continuing over costs and who lost their house to pay.
  • The divorce case over £3m of assets where the costs were £930,000 – wholly disproportionate when mostly people are arguing over 10-20% of their assets.
  • Countless divorces where the costs exceed 20% of the assets so people have less for housing and costs exceeded the value of the difference between them. Why?
  • Numerous cases where the costs are £30,000 and the case settles in mediation with no money changing hands or a smaller payment.
  • A dispute we mediated between two flat owners over noise – sound-proofing between the flats cost about £3,000, they were about to go to trial with total costs of £64,000 – the judge directed mediation and they settled with a Focus mediator with one person buying the other flat (the judge could not have ordered this).

I could go on all day – you get the picture. I looked at the Civil Litigation statistics for 2015 and calculated less than 4% of all defended cases were mediated, the rest litigated with no intervention to try and settle them. When people issue court proceedings they expect to engage a functional system and have no idea of the costs and delays they will face or how broken our system is. The legal process is narrowly focused on establishing the facts/truth then applying the Law (statute as interpreted by case law) to the facts and KERCHING – the ‘Right Answer!’ In reality it doesn’t work, because the truth and facts are debateable and establishing them prohibitively expensive and the Law is often unclear with much ‘On the one hand this and on the other hand that . . . ‘

What happens when parties get desperate for litigation to end?

There comes a time when the parties are getting desperate for litigation to end. They see the it stretching into their future life like cancer, they want it to stop – but how?  This is where in a functional dispute resolution system there must be alternatives to trial, escape hatches from the madness – and this should be mediation. We know mediation works. It deals with every aspect of the dispute, especially those emotional conflict drivers that fuel litigation and which the legal system ignores as irrelevant. Legally irrelevant they may be – but for many people emotional conflict drivers are the real reason for fighting at court.

We need to make the Proportionality Rule mean something understandable so it works. When joint costs reach 20% of case value judges must automatically refer cases to mediation, so people can have help settling their dispute with a conflict resolution expert.  Where the case value is unclear the judge must simply refer to mediation before costs get out of hand. This has the added attraction of costing the tax-payer nothing and diverting and settling huge volumes of litigation. Justice as it works at the moment is the medicine that is killing the patient. We need a workable, fast and humane alternative – and mediation is the answer.

What conceivable reason is there for not trying to settle litigation before it has cost more than it’s worth? Stop the Madness – make the Proportionality Rule work with an automatic referral to mediation when joint costs reach 20% of case value.

Author: Mary Banham-Hall, Family Mediator, Milton Keynes & Bedford

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 at:  www.focus-mediation.co.uk

The Right Rites – Part 2 of 3

Part 1 – Rites of passage are important. We celebrate marriage, birth and death with rituals and gatherings; weddings, funerals, baptisms, graduations, leaving parties & naming ceremonies. The list is endless. We mark these important milestones because we feel it is important to do so. It is a part of being human; it is part of who we are.

The Right Rites Part 2 of a 3 part blog

There is no recognised rite of passage for separation and divorce. Yet the grief experienced on such separation can be every bit as painful as on death, possibly worse, as ending a relationship is a choice implying someone is at fault, but you don’t usually choose to die. The ending of a relationship says something additional, shared life is over by choice, there may be some blame in this. This extra dimension elicits extra painful emotions and often conflict.

Separation and the Grieving Cycle

The grieving cycle involves a journey through denial, anger, blame and often depression before acceptance can be achieved and people can move on. It takes time and couples travel at different speeds and get there at different times. Frequently one of them (or both) are so angry that they experience powerful instincts to fight their new enemy, to hurt them back, to try and get more for themselves, to try and lose less.  In this fragile state they may rush into aggressive litigation and find themselves stuck on that path. Such instincts are powerful, can take over and make rational thinking impossible and lead to poor decision-making. To understand this better we will look at some common wrong rites which are really ritualised revenge, which is often experienced on separation. Ways of getting someone back, of striking at your nearly ex:

  • A furious mother may stop children seeing their father, running him down, turning them against him. This hurts the children badly.
  • An angry father may stop paying the mortgage on the family home or supporting his family. This causes terrible anxiety and insecurity.
  • There may be an emotional explosion, the police may be called, an injunction sought, with an exclusion from the home.
  • Someone might issue court proceedings to ‘take their ex to the cleaners;’ have a ritualised fight via fierce letters and court.
  • Many threats and angry exchanges take place escalating the conflict which rapidly acquires a life of its own.

These activities are common, instinctive rites of passage and are frequently motivated by displaced grief. They are completely illogical and keep people stuck in fighting mode over everything and nothing.  People think it’s what you do in this situation. You must fight for what’s yours or you’ll lose out. Yet fighting is destructive and expensive in every possible way and does not produce good solutions.  The release of anger through court and similar rites of passage may feel cathartic – but it does not produce good solutions, just pain and more anger. And revenge. Often fighting costs more of the value of the difference between people – which is truly mad, yet these legalistic processes do nothing to deal with the underlying problem and so get hi-jacked for an emotional journey that is irrelevant to the legal process. 

A Better Way

Once people have worked through their worst grief – especially if they have received some counselling or steep legal bills – they often regret the path they have set and wish to change direction. This is where mediation can help – as it is an opportunity jointly to decide to take a different more constructive route together at the same time, to set new ground rules as a separated couple, create a new and better shared expectation for the future. Fraught couples can experience a different, creative and positive focus, a new rite of passage, without fighting. It is never too late to mediate. It’s never too late for an outbreak of sanity. We need to make the court rule that says ‘costs must be proportionate to the value of a case’ actually work. All it takes is for judges everywhere to refer all cases to mediation where the joint costs are close to or exceed 20% of the case value. Huge numbers of cases will then settle instead of lumbering on to trial with people thinking there is no way out of their litigation. See my next blog on this ‘Stop the Madness!’

The way things end is important, we remember endings forever along with how everything began. Choose a decent ending you won’t regret and be ashamed of. Choose mediation, whatever stage you’re at, because it helps.

Author: Mary Banham-Hall, Family Mediator, Milton Keynes & Bedford

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 at:  www.focus-mediation.co.uk

 

 

 

Crime and Punishment – Part 1 of 3

We grow up understanding that when we do wrong we must face the consequences, pay the price, take our medicine. We know if we commit serious crimes we will go to prison and that less serious crimes are also punished with fines, suspended sentences, community service orders and tagging. People don’t believe you should be able to do wrong and get away with it. However, what about ‘wrongs’ that are not crimes, not illegal but which hurt very much? What about abandoning your partner? What about committing adultery, desertion, cruelty and other unreasonable behaviour?

Crime and Punishment Part 1 of a 3 part blog focus mediation

There is quite rightly a movement to take the blame out of divorce and make it into an administrative process where no allegations of fault can be made. This has to be right as it is well settled law that the reasons a marriage ended does not affect arrangements for time with the children (unless the behaviour distresses them) or the financial settlement. The only exceptions are if it falls into a vanishingly rare category of cases where the behaviour is so unreasonable it would be inequitable to disregard it. For most purposes that means forget it, ordinary unreasonable behaviour won’t suffice. You probably need fraudulent financial conduct, forged signatures, and making off with the money – most ordinary divorces come nowhere near the level of conduct required. Having a secret affair and even a hidden child is not relevant conduct. Emotional ‘crimes’ are less likely to count than financial crimes, where there is room for the view that the person who reduces the matrimonial pot should pay the price for that.

An Ex Getting Away with Murder

There is no doubt that some people faced with the end of their relationship get very stuck on the reasons it ended. They may find it impossible to accept that their ex had an affair and that’s just what happens. They may strongly believe their ex must suffer a penalty, albeit not a true crime in the sense of behaviour that is charged, proven then punished through the criminal courts. We do not stone people to death for adultery. For the ‘innocent party’ this can feel hugely wrong and unfair. They see their ex ‘Getting away with murder’ so to speak. They believe s/he should suffer, pay the price and that price is that they should have less money or time with the children and they as the innocent party should have more money, an exclusive relationship with their children. . whatever. Of course this is not how it works. Children need a relationship with both parents and should not have to choose. Also, you are not rewarded with a more generous divorce settlement because your ex had an affair or was in some other way ‘at fault’. Yet still that feeling of injustice persists – not your fault – their fault – they should suffer you should not. Retribution is required.

The truth is the person who suffers the most in these situations is the person who cannot detach emotionally from the situation and let the relationship go, who cannot soothe their anger and move on with their life. There has been no crime and there will be no punishment. It’s not a criminal offence for a relationship to end – and most marriages die quietly when no one’s looking. So what should society offer as an alternative to adapting the principles of crime and punishment to family break-down?

Truth & Reconciliation

I’d like to propose a family version of Africa’s Truth and Reconciliation Commission, now the Institute for Justice and Reconciliation, which has been copied world-wide it is so successful. This is not with a view to saving the relationship, but with a view to constructing a forum in which things that need to be said can be said and heard and people can be helped to come to terms with divorce. We know that this type of process works and allows healing to take place and people to move on. How and why?

When people have been hurt and wronged they often feel upset, angry and outraged. They want this understood and acknowledged by their oppressor and they may want revenge and punishment. They need to be heard, this need is huge and there is currently no forum for it in family break-down where it is badly needed – otherwise it will continue to burst out inappropriately.  So we should set up a process for helping people to come to terms with the end of their relationship and where children want to be included this should be facilitated. We might call this The Acknowledgment and Acceptance Forum (AAF) and it would be informally facilitated by someone trained to run it. I’m not a therapist but as a mediator I have had to help people with a version of this many times – in order to start the work of mediation. This is what might happen:

  • Each person explains their pain and their ex’s effect on them
  • They must listen to each other and acknowledge each other’s pain and any responsibility they have for this
  • Things that people need to say can be said, heard and acknowledged
  • The facilitator helps understanding with explanations and interpretation, normalising and summarising. They reality check assertions and try to establish some sort of shared understanding about events if such is possible
  • The couple may realise they may never agree on the ‘truth,’ they have their own beliefs about what happened, this is normal and they need to let it go anyway
  • The parties are helped to come to terms with the end of the relationship, there may be forgiveness but it isn’t necessary – acceptance is enough
  • There may be apologies, acknowledgment of wrongs done so rage can subside along with any sense of injustice, so people can move on

The problem we have at the moment is there is no way for this emotional journey to be facilitated and without it the angst breaks out inappropriately in other forums such as court proceedings, solicitor’s letters, fights about children and the money. We need a Rite of Passage for broken families – next week see part two of this blog The Right Rites.

Author: Mary Banham-Hall, Family Mediator, Milton Keynes & Bedford

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 at:  www.focus-mediation.co.uk

Activities and Places to Visit for children in Beds, Bucks and Herts Summer 2018

The Higgins Museum and The Cecil Higgins Art Gallery

Castle Lane, Bedford MK40 0PF

Craft activities throughout the summer on Wednesdays and Fridays.

Exhibition by the artist Edward Bawden entitiled Bawden’s Beasts

St Albans Museum and Gallery

Market Place, St Peters Street, St Albans, Herts AL3 5DJ

Opened in June 2018. Visit the old court room and prison cells and find out about the history of St Albans. Free family activity trails from 28 July 2018.

Knebworth House Dino Adventure

Knebworth, Herts SG1 2AX

Dino Adventure: Saturday 18 August 2018 – Experience the pre-historic world of the dinosaurs

Knebworth Country Crafts and Steam Fair: Saturday 11 and Sunday 12 August 2018 – Including birds of prey, steam engines, children’s entertainers and horseback displays

Days Out

 

Bletchley Park

Sherwood Drive, Bletchley, Milton Keynes ,Bucks MK3 6EB

Play the games of the codebreakers: Chess and Challenges – every Tuesday and Thursday  from 31 July to 30 August 2018

Wrest Park

Silsoe, Beds MK45 4HR

Listen to the Summer Bands playing over the bank holiday on Sunday 26 and Monday 27 August 2018 between 12 noon and 4 pm and explore the grounds with an activity pack and audio trail.

Chiltern Open Air Museum

Gorelands Lane, Chalfont St Giles, Bucks HP8 4AB

Take part in Medieval Pagaentry and Vicious Vikings and Tudors on Thursdays from 26 July to 30 August 2018.

Explore this historic working farm and see the preserved historical buildings.

Shuttleworth Collection

Old Wareden Aerodrome, Hill Lane,Biggleswade, Beds SG18 9EP

Family Air Show on Sunday 5 August 2018 and The Flying Proms on Saturday 18 August 2018

Visit the museum with vintage aircraft,cars, motorcycles and agricultural exhibits – all in working order.

Stockwood Discovery Centre

Stockwood Park Golf Course, London Road, Luton LU1 4LX

Various workshops to include a Lego workshop, a Very hungry caterpillar workshop and a Bear hunt workshop throughout the holidays.

Forest of Marston Vale

Station Road, Marston Mortaine, Beds MK43 0PR

Activities will take place throughout the summer holidays to include Wild Artwork in the woods and Dragonfly Safari

Royston Cave

Melbourne Street, Royston, Beds SG8 7DA.

Visit this unique man-made cavern in the shape of a bee hive which is thought to date from the 13th century and covered in ornate carvings.

Natural History Museum Tring

Akeman Street, Tring, Herts HP23 6AP

Discover the special exhibition ‘What’s in the Woods’. A hands on exhibit to discover the sights and sounds and smells woodland spaces.

With summer activities in Tribal den building, Prehistoric detectives and Ice Age cave art.

Verulamium Musuem St Albans

St Michaels, St Albans, Herts AL3 4SW

Find out about life in Roman Britain. Take part in activities and dressing up and explore the remains of the Roman town

Leighton Buzzard Railway

Pages Park Station, Billington Road. Leighton Buzzard, Beds LU7 4TN

Heritage steam railway and working museum. Enjoy a 70 minute return train ride.

Go Ape Woburn

Woburn Park, Woburn, Beds MK17 9QN

Tarzan swings, rope ladders and zip wire. See the elephants in the safari park from high in the tree top walkways.

Compiled by: Elaine Clarke, Family Mediator, Bedford.

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 at:  www.focus-mediation.co.uk

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