Category Archives: Commercial

Family Justice Council Publishes ‘Sorting out Finances on Divorce’

Ever wondered what a clean break is? Or what the options are for your pensions on divorce?

The new publication launched by the Family Justice Council is a useful guide for those contemplating separation and all that this entails financially. A lot of the case law we read about are the ‘high end’ cases where millions of pounds are at stake. The guide however provides a summary of the legal position for those people with a regular financial picture where the focus of the courts will be on the wellbeing of the children and dividing the finances in a way that meets the needs of both parents in the short term and hopefully in the longer term too.

In mediation, we suggest to clients that they take legal advice on the best and worst case scenarios should they end up in court. Would the court consider the split that they are asking for in mediation as being appropriate? Does the proposed division meet the housing and income needs of both separating partners and, most importantly, does it adequately provide for the needs of the children? For some clients, where finances are very tight, they say that they can afford to take only limited advice. Without understanding what the legal parameters are, it can be harder for them to reach agreement in mediation, which makes this guide particularly welcome.

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I would recommend that couples who are separating, with averages, with or without children, should read this guide. These are the principles which might provide the framework for a mediated agreement, which can become legally binding as part of their divorce.

In order to be binding, the agreement reached in mediation will have to take into account the principles covered in this handy guide. The writers have done a fantastic job in bringing the main points in one place and writing in clear readable language. It won’t be universally applicable as there are always special cases and a general diagnosis cannot replace tailored advice. However, it will be a very helpful resource for many people.

You can find the guide to ‘Sorting out Finances on Divorce’ here: https://www.judiciary.gov.uk/wp-content/uploads/2016/04/fjc-financial-needs-april-16-final.pdf

Today’s Challenge: Describe the Benefits of Mediation and What it Does in Two Sentences?

On 22nd May about 150 mediators, judges of various flavours, policy makers and politicians, assembled at The Met in Leeds for the annual Civil Mediation Council (CMC) conference. (We will get to the challenge in a minute). The glitterati of the mediation profession were there, along with those members of the judiciary sympathetic to mediation as a means to resolve disputes. The message from On High was clear, the courts need more cases to settle and avoid trial, as the present demand for adjudication cannot be met, there are not enough courts or judges and there’s certainly not enough money.

Mediation is the most probable alternative to court. It saves time, money and stress, so why don’t people try to mediate before issuing court proceedings? There were many theories, but the most persuasive was that many people want to go to court because they believe the judge will agree with them, they will be vindicated, the ‘other side’ will lose, suffer and be humiliated. They will get what they want. Of course, they probably won’t get what they want, both sides feel the same and can’t both be right.  Also, the costs frequently exceed the value of the dispute by a considerable margin, so it ends up as a poor investment.  Though it’s questionable if applying to court can ever be regarded as an investment; an expensive gamble might be a more accurate description.

Most people wish they’d never started court proceedings long before they end, when everyone is just desperate for it to be over. By then if not before, mediation is usually the best way out and of course, we all know that very few cases go to full trial, so the revenge/ vindication sought is a satisfaction rarely achieved.

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We heard from Lord Faulks the government is committed to mediation and wishes to extend its use in the resolution of disputes.  Lord Justice Briggs said the same thing. Then we established that the Jackson reforms last year have not, in fact, increased the take up of mediation as much as expected, despite government policy and reform and the unarguable fact that many cases at court are simply in the wrong forum for sorting them out. People need help with resolution not help with fighting, however angry they feel – it is counter-intuitive. There were workshops examining online mediation, compulsory mediation, mediation in schools, mediation in the political process and ACAS. The constellation of experts assembled was inspiring.

Joshua Rosenberg (BBC legal commentator and expert) helpfully described what mediators should do to increase public awareness of mediation. He had done the training, saw what it could achieve and was all for it – but people don’t know what it can do for them or how it works. He thinks we need a two sentence description of the benefits of mediation and what it can do. Then people may better understand and try mediation, instead of litigating first and regretting it later. So – the challenge is to find two sentences describing mediation in such a way that ordinary people will know what it means. There follow some examples:-

  • Mediation reaches the parts of the dispute that court doesn’t and gives people more choices about their way forward that the Law. Mediation is fast, affordable and starts where you are to sort out disputes in ways acceptable to both of you, so you can move on
  • If you are in dispute resist the temptation to invest your time and money arguing why you are right and fighting, as in the end most people do a deal and the sooner the better.  By mediating first you can save the most time, money and stress. So start by seeing what you can agree in mediation rather than start with an expensive legal ritual that drives you poles apart.
  • When in dispute, think carefully about what you want to achieve. Grind your opponent into the ground? Hurt them like they hurt you? Or sort it out and move on with your life? Mediation lets you end it swiftly and cost effectively. The price of justice is an uncertain outcome at vast expense and with huge delays, the benefits of mediation are fast, affordable certainty and it’s over.  No brainer.

The problem is, these definitions come from a mediator – we thought it would be better if a non mediator writes  the 2 sentences. So, here’s the challenge – £100 voucher for the shop of your choice to the person who comes up with the best two sentence description of mediation. Closing date – 31st August 2014.

Conflict Junkies

People addicted to conflict – what does it mean? Who are they?

Sometimes, perhaps often, solving intractable problems is so difficult, we can’t. We don’t want to try. So the easy answer is to blame someone else and create a distraction. That distraction may be conflict. It diverts attention from the real insoluble problem, by focusing instead on arguments and blame.

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In some families the conflict is habitual and embedded. Everyday discussions are conducted with aggravation, simply because that is how that family operates and relates to one another. Once, in a family mediation, a couple  habitually argued unstoppably – then every so often, they would resolve some point and divert into another vicious exchange from which they would not be diverted by the mediator. Eventually when there was a pause, the mediator asked “What would you do if you stopped arguing?”
The couple looked astonished. “We wouldn’t have anything to talk about . . .”

What do Mediators do?

One of the main objectives in mediation is to give people insights. Insights that help them understand the effect of their actions and of their style of communication on their families. This responsibility does not stop with divorce – where there are children it becomes even more important.  Sharing parental duties and responsibilities is more complex through circumstances. Mediators try to help people commit to changing to improve outcomes for their children, as well as make life easier and less stressful for themselves as parents.

Everyone perceives the world from their own perspective. It takes empathy to imagine events from another’s perspective and helping to achieve that without accusation or blame is a mediation skill. For example, a parent with a long journey around the M25 in the rush hour may be exhausted and irritable by the time they arrive to see their children. If the children have conked out and gone to bed and the other parent angrily relays the disappointment of their offspring, conflict is probable. Add the guilt induced through hearing the account of their children waiting with noses pressed against the window watching for them and the scene is set for trouble.  Situations like this are standard fare in family mediation. The same or similar scenes present in a multitude of variations, but the underlying problems are the same. There is the disappointment of the children, the exhaustion anger and disappointment of the parents. The couple’s own history of miscommunication brings them to this latest re-enactment of their disastrous repetition of previous recriminations, accusations and blame.

Can the mediator intervene effectively enough to help them break the habits of a life-time? Can insights bring about change? It depends how much people want to change. Surprisingly, the worse it is for them, the more likely they are to decide (and it has to be a joint decision) to commit to ground rules to stop the re-enactments of the past.  Next Friday the mediator will not be there, but the rules agreed with her in mediation will be in their minds and hopefully the scene is set for a different outcome.

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Much communication is either non-verbal or relayed partly through expression and tone of voice. The same words can convey completely opposite meanings if said angrily than if said in a soft affectionate way. Some people have learned to negotiate assertively in large pushy families and others have learned to negotiate totally differently, by offering and declining, and needing to be pressed to accept something they really desire. Then there are cultural and other layers of meaning that can cause complete confusion, it is a wonder we understand each other as well as we do.

It is common to find in mediation that a couple are repeating a train track type conversation,  they have had countless times. They know it ends in dead-lock, but seem to be irresistibly drawn to repeat it. “See, it’s hopeless s/he doesn’t understand . . . ”   The appeal is to the mediator to translate. This is called re-framing. The mediator hears what is said and re-phrases it so the other person gets the meaning. This can be through a more neutral form of words or different tone of voice, or both.

Many couples want the mediator to shuttle between them to spare themselves the stress of having to meet. That can work well, but if parents have to communicate over children, then shuttle mediation is unlikely to help much, as they parents need to learn to understand each other without the mediator. By not meeting and communicating with the mediator’s help, shuttle mediation does not help mend the underlying communication problem.  Mediation is the main – if not only method parents can gain the insights they need to make changes enabling them to communicate better in future, unless they attend counselling, despite their separation.

Mediation is hard work – but worth it.

The Basket of Truth

The basket is asymmetrical and looks different from every angle.
Each observer is convinced by the truth of their view.
Imagine the basket is the physical embodiment of the truth.

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We believe our recollection of the truth is right, because we saw and experienced it and the challenging, contrary memory of others feels like an outrage. So people have genuine conflicting beliefs about the past, about whose fault it was, who said and did what.

The process of the Law collects evidence about these truths, to decide which is right and the apparent or real truth wins, who knows if it is always right? The process of Mediation shows people they each can have their beliefs – they will anyway. However, they need to resolve the conflict about their differing understandings of events in order to shape an outcome together that they can both live with.

We should always start with the end in mind. Where there is disagreement, usually agreement eventually follows, in order to bring matters to an end. We need to end with a settlement that lets people move on with their lives.

So we should not automatically first embark on a process (the Law) that makes out each most extreme position first, as that positional bargaining drives people further apart and makes them enemies in a fight, instead of people with a shared interest in an early and affordable resolution.

If you feel angry or upset that someone does not understand events or even the world as you perceive it, persuading them may not work. You may have to agree to differ and negotiate a way forward together. A mediator will help you do that. That, in a nutshell is the spirit of mediation.

Mediation and the Law – a big change is happening

When businesses and families have serious rows everything can seem insoluble and legal action may follow.  However, emotions and old grudges may cause a dispute that has nothing to do with the apparent “legal problem” everyone thinks they are arguing about. For example, I mediated a dispute between a spouse and the siblings of an elderly patient with dementia, about who should spend what time with the patient and control his care and welfare decisions. The spouse was distraught and felt threatened at the demands of the sibling group, who had little trust in her.  This was resolved in one day after nearly a year’s legal wrangling, court proceedings and after legal costs of over £30,000 had been spent.  This was not about legal niceties – there was no dispute about money or the law.  It was about grief, loss and the human tendency to displace impossible grief into something controllable, like a big row over something.

The only option for lawyers is to sift the evidence and translate it into a legal narrative – that is their role.  The difficult relationship between people, their struggle with each other, their relationships – that is often the real problem.  A trial or solicitors’ letters can be like amputating a leg, because someone has an infection. It’s as much use.

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So imagine a huge row – about a will, a sick relative, a business – or a commercial dispute between people who work together, or about a contract – wherever there are people – there will be disagreements.  It is human nature.  Each participant comes at it with their own interpretation of the “truth” with their own beliefs, which tend to be re-enforced through debate, as people don’t want to back down. The conventional, legal ritual inflames the conflict drivers of the dispute, so it escalates.  The Law concerns itself with the evidence and legal issues – but those are often not what matters to people. Mediation reaches the conflict drivers, the beliefs and misunderstandings that fuel disputes. Mediation is far more likely to resolve the argument, as it deals with a far wider range of issues than the law can.

Given the success of mediation at sorting out disputes, it is a wonder it isn’t a first choice for anyone with a possible court application, but it hasn’t been so far. This is because the allure of court is that the judge will agree with you and the other person will be found to be “wrong” or “at fault” People want to be found to be “right”, it is much more appealing than a settlement. The problem is, usually both parties think they are right and the law of averages says half must be wrong!

The court costs are huge, they frequently dwarf the financial value of the issue being mediated – then everyone loses out.  The court timescale is long, but by the time the proceedings are under way, it can feel there’s no way out. However, since April the courts are increasingly directing people to mediation. The tide is turning in favour of fast and affordable, non-adjudicated resolution in mediation for all disputes, whether commercial or family. Our experienced specialist mediation team are proud to be mediation experts.

Business Disputes

Business Disputes

Disputes can paralyse a department or even the whole company, diverting decision-makers from the key tasks of doing deals, creating wealth. The cost in money and reputation can be incalculable.  A Focus Mediator can help restore equilibrium swiftly, confidentially and with the minimum of expense and disruption.  The key aim is to end the haemorrhaging of time and money as quickly and productively as possible.

Focus Gets Results

Mediation usually only takes a single day, and can be set up at short notice.  Where relationships have broken down and negotiations failed, a neutral mediator operating in a private, “without prejudice” environment aims to broker a deal that all parties agree is better for them than the fight.  Focus mediators achieve that in over 90% of cases, with parties signing binding settlement terms there and then.  The process even brings many of the rest close enough that they settle soon after.

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Business Disputes and Litigation

Disputes often grow in complexity as the lawyers jockey for tactical advantage, and extra parties (such as insurers) may become involved.  Before you know it the legal costs can be one of the biggest issues!  Mediators start where you are. Only a mediator can discuss each party’s hopes, fears and objectives with them in confidence.  No judge, arbitrator, adjudicator or party representative can ever do that.  It’s one of the main reasons mediation gets results. And mediated solutions can be more creative and user friendly than awards imposed by the courts, arbitrators or tribunals.

Problems, Problems

Traditional methods of resolving disputes often drive parties further apart long before any resolution is possible.  If you’ve been through the stage of snarling at each other, and that didn’t bring the opposition to heel, where should you go next?  Since April 2013 litigation procedures have been reformed to encourage and incentivise parties to use ADR (Alternative Dispute Resolution) including mediation. Failure to do so can have adverse costs consequences, even for parties who go on to win their case.  Proposing mediation, far from being a sign of weakness, can put your opponent on the back foot.

How does a business mediation work?

We will help you choose the right mediator from our panel and a day is set aside for the mediation. A fixed fee is paid up front, usually by the parties equally. Pre-session process is kept to a minimum – usually just a short position statement from each party, to ensure the mediator understands the background.  The mediation day usually starts with an opportunity to explain your case in a group session, all together. Most of the day is spent in separate rooms with the mediator shuttling between you. You say what you want relayed, and what is to be held confidentially by the mediator. This process helps the mediator see areas where agreement may become possible.  The objective is a binding settlement, signed on the day.

Usually your mediation can be held within two weeks of your contacting us

Workplace Mediation

Conflict at work is inevitable in a thriving innovative environment. For example, competition between teams or individuals may bring out the best in people, particularly if there is a prize or reward for the most successful. A state of ‘Healthy’ competition is good for the workplace and has a number of benefits such as, attracting the best candidates for advertised roles, retention of staff and increased productivity.

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Conversely, conflict that develops into something ‘personal’ between two or more persons may have a disproportionate affect on the way others perform their roles. Unresolved conflict may lead to a decrease in productivity, difficulties in recruiting the right staff and increased absenteeism through sickness, particularly stress related conditions.

People may react to workplace conflict in a number of ways.

Fight – we’ve probably all seen a verbal argument at work, sometimes it provides the cure to the dispute, or it may lead to more deeply entrenched positions with other workers being expected to ‘take sides’ and demonstrate allegiance by a lack of co-operation or communication with the ‘other side’.

Flight – some individuals will turn their back on what’s going on in the hope that the problem will just go away.

Freeze – someone unsure as to how they should deal with the situation may become passive, efforts to deal with the situation may be ‘half hearted’ through a lack of conviction or confidence and the issue never gets resolved.
Workplace conflict can be resolved by;

Having a quiet word, an informal approach can often solve the problem; it may be that the persons concerned were unaware of the impact of their behaviour on the rest of the workforce.

Informal investigation, speaking to those involved in or affected by the dispute, and taking appropriate action may provide a solution.

Internal processes, grievance procedures or a formal investigation may be necessary; the downside of formal procedures is that there is often somebody found to be at fault. This process creates a winner and loser and may lead to resentment, withdrawal or further attempts to get back at the organisation or another individual involved.

Training for line managers around topics such as, ‘Managing difficult conversations’ could lead to conflict being identified, and dealt with, at an early stage rather than when positions have become entrenched.

Focus Mediator – An accredited impartial mediator facilitates communication between people in dispute to improve their future working relationship and restore their productivity.  Workplace mediators accept that personal differences may continue, but the mediator helps the parties to find their own solution to their dispute or problem, so that they can work together effectively.