Monthly Archives: October 2018

Contents, Totems and Ginger Jars – 2018

“It’s Mine!”

Contents Totems and Ginger Jars 2019

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”).

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!”

Author: Mary Banham-Hall LLB FMCA, 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 Cost of Litigation

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

The Cost of Litigation Focus Mediation Blog

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.   This 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 a 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 have imposed if 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.

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 discombobulating 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 some 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
  • Talk to a mediator, call us on 01908 231132.

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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