Category Archives: Mediation

Mediation won’t work, do not pass Go, go directly to Court

Many divorcing spouses believe they need a Judge to divide their marital assets, or they risk losing out. They know litigation is hugely expensive and adversarial, but they believe that ultimately it’s the only viable option for them. A stay at home mum/dad may feel they need to fight to keep the house.  A mum/dad working full time may believe they will lose all / the majority of the equity in their home and half their future salary, if they don’t battle in court. Full time working parents may also worry they will be penalised for working so hard – what if they aren’t portrayed as involved and loving parents? There’s no doubt that each of these scenarios is frightening.  ‘Arm yourself with the best solicitor you can afford and fight for what’s yours, is often the collective advice from friends and colleagues.

Mediation won_t work do not pass Go go directly to Court

Will litigation really secure the best outcome?

As a former family solicitor and now a full time family mediator, I believe litigation is rarely the best option for a family. The reality is they will each spend tens of thousands of pounds protecting ‘what’s theirs. The process is lengthy and adversarial. Parental communication will be tested to the absolute limit – never good for children. Mediation saves many thousands of pounds in litigation fees. ‘But we don’t get on – he/she hates me and wants to take me to the cleaners!’ Mediation is voluntary and so it won’t be suitable in every case. However, there’s a misconception that couples have to get along for mediation to work. Not so. Quite often clients haven’t spoken for many months or their communication is extremely strained and difficult. It doesn’t mean mediation isn’t suitable. There’s no secret or magic to mediation. It’s for couples who understand that the most efficient way to resolve finances and child arrangements is to resolve the issues together – but they can’t.  Mediation is a process that enables conflicted couples to avoid court and maintain control of their own future. At what other point in our life would we relinquish control of decision making about our future? Happily married but can’t agree on the best school for your child – would you ask an outside agency to decide for you? Thought not. Divorce shouldn’t prevent self determination.

How does it work?

Couples who need a financial settlement come to mediation and the mediator ensures they provide full and frank financial disclosure. If one party isn’t as familiar with the finances, then time is spent ensuring they are fully informed and clear about what the finances consist of. Our lawyer mediators are used to dealing with financial disclosure and checking every stone has been turned. Once full disclosure has been completed, we strongly recommend each client sees a solicitor for ‘goal post advice’. Goalpost advice means your solicitor gives you a range of possible settlements, “this is the lowest, this is the medium and this is the best you can hope for”. It’s very important to ask your solicitor what they would advise your ex if they were their client. It’s highly unlikely they’d tell them they must give up all equity, savings, pension and half their income. So asking this question ensures the advice they give you is realistic and meets everyone’s needs. The starting point is 50/50 and the court has a duty to try and ensure that each parties’ needs are met, as far as reasonably possible given the resources available. That’s actually why litigation often disappoints – as the costs are so high, someone needs to win. The court however isn’t looking for winners.

Reaching agreement.

When clients return to mediation after receiving ‘goalpost advice’, we explore their respective capital and income needs and consider options.  Communication slowly improves over the sessions and clients work together as problem solvers and find solutions they can both live with. There are more assets available as they haven’t been reduced by expensive litigation costs. Their solicitor will then make the proposals binding.

Find out more about mediation at a Mediation Information and Assessment Meeting (MIAMs) with one of our experienced lawyer mediators. Clients can attend together or separately. It’s full of useful information and a great starting point.

Author: Sara Stoner, Family Mediator, Broxbourne & Potters Bar

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

 

Separating well 2018

In the early stages of a separation, you can feel like you’re in a vortex: everything is swirling around, uncertain, and it’s difficult to find anything to grab on to and steady yourself.  Here are 10 things that our experience has taught us can hel

1. Put children first

If you have children, their needs should be the guiding factor while you are going through the separation.  A lot of people might take this to mean you shouldn’t separate at all, but the research is clear: it’s not separation or divorce that harms children; it’s being exposed to conflict.  The very best thing you can do for them is not to argue in front of them.  If you let their needs guide your decisions during this difficult time, you will generally be doing the right thing. 

2. Read up

Helpful resources include websites such as The Parent Connection https://theparentconnection.org.uk and the Couple Connection https://thecoupleconnection.net , both from relationship charity One Plus One, that give ideas for better communication in difficult circumstances.  The Resolution website http://www.resolution.org.uk  is an excellent source of legal information and guidance. Relate https://www.relate.org.uk/relationship-help/self-help-tools/book-shop  have done an excellent series of books about managing the process of separation in a positive way.

Separating Well

3. Get advice

The law surrounding separation and divorce is not necessarily what you might think.  For example, it might come as a shock to people separating out of unmarried relationships that simply cohabiting with someone, no matter for how long, confers no legal rights as such: the concept of the ‘common law’ wife/husband is a myth. The law about separating out finances or property on divorce might also come as a surprise, particularly the fact that it doesn’t matter who has done what to end the marriage in 99% of cases – it’s nearly always the financial needs of family members that matter most.

4See a therapist/counsellor

Often when a relationship is in trouble people consider seeing a counsellor, or therapist, in an attempt to ‘save’ it.   In our experience, it can also be helpful to see one together during the process of breaking up. A good couples’ therapist can facilitate you both to process any anger, hurt, disappointment, confusion in a safe space and in a constructive way that means it is less likely to spill over into the rest of your lives, or in front of any children.  A therapist can also help you work out how you will talk to any children about your separation, and think through possibilities for the future.

Many people also find that it is helpful to see a therapist on their own, separately, to work through some of the intense feelings that are inevitable. You can get a referral to a therapist via your GP, although you may find there is a waiting list.  Alternatively, you can find a good private therapist in your area via the BACP website http://www.itsgoodtotalk.org.uk , and seeing a counsellor needn’t be costly.  Having a safe space to process complex emotions can be helpful to stop them from impinging on other areas of your life.

5. Give and take space

It’s really important to give your estranged partner or spouse space during a break-up, but often this is more difficult than it sounds, particularly if you’re still sharing the same home. Fear, suspicion or anxiety can make it difficult to keep things in perspective, but being aware of how you’re feeling can make it easier to recognise when you need to take a break.  When the pressure’s on, it’s so important to take space for yourself, and to force yourself to do things that you enjoy or that make you feel better, whether it’s going for a run, spending an evening out with friends, or anything else.

6. Be businesslike – work out the best way to communicate – project manage

You and your partner or spouse will have to continue communicating throughout your separation, particularly if you share children, pets or a living space. If early on you can take the time to work out how best you can do this to minimise stress, disruption and misunderstandings, you may save yourself a lot of trouble later.  (As family mediators, this is one of the first things we look at with the aim of reducing further stress.)  For some people, it’s main communication by email and by text in emergencies; for others, it’s limited emergency phone calls and weekly meetings about plans.  Whatever you choose, if you can remain businesslike and communicate with your former partner as if he/she were a work colleague on a project, you will make headway with arrangements much more quickly.

7. Choose carefully whom you listen to

Friends and family can be a lifeline during divorce and separation.  They love you, they want to support you and they are unquestionably on your side. However, this means that they may not always be the best source of advice or guidance about present and future dealings with your estranged spouse or partner. Divorce is not unusual and people will carry their own baggage from their own separation, or their parents’, or a friend’s.  Although delivered with the best of intentions, it is important to be aware that other people’s perspectives and experiences may not always be helpful to you – objective advice from a solicitor, or a counsellor to whom you can chat without fear of judgment, can help provide some distance.

8. Don’t worry about the divorce

The actual legal process of divorce often weighs heavily on the mind of married couples who separate. In fact, this is generally one of the smallest issues.  Legally, it matters not who divorces whom and why; the process is now done entirely on paper in most cases, and you will not need to see a judge to get a divorce unless there is something very unusual about your case.  In most cases, a mediator can help the two of you work out the formalities of divorce very quickly, leaving more space to focus on financial and children issues.

9. Seek consensus about future arrangements: litigation is a last resort

The court is, generally, the least appropriate place to work out arrangements for a family’s future after separation or divorce. Sometimes it can’t be avoided.  Most of the time, taking a practical and child-centred approach to arrangements for children’s care, and a commercial approach to matters of finance and property means that you can avoid court.  Collaborative law, mediation, negotiating through solicitors, and arbitration are all sensible options for sorting things out without going near a court.  A good legally-qualified mediator, such as those working with Focus, will save you time, money and stress while helping you keep control over your future financial arrangements.

10. Remember everyone has their own truth about why a relationship broke down – don’t let this stand in the way of your future

As mediators, we work with couples to stop arguments about who did what in the past from getting in the way of making arrangements for the future.  It isn’t necessary that each of you should have the same view about what caused the relationship to end.  Our job is to help you to focus on what happens next and to enable you to move forward with a workable plan.  We’ve helped thousands of separating couples do exactly this; give us a call on 01908 231132 if you’d like to have a chat about how we might be able to help you too.

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

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

Mediation & Grey Hairs

I was previously a family & criminal law solicitor. I represented defendants accused of serious crimes including murder. I also advised and represented family clients in court. Many of my family clients were suffering with the shock and pain that family breakup can cause. I’m now a family mediator and mother to two boys and I feel my role as a family mediator is the hardest of all. I sometimes leave the office feeling mentally and physically exhausted as the work is exceptionally challenging.

Mediation and Grey Hairs Focus Mediation blog

A solicitor has one client and a mediator has two that are in conflict. A solicitor gives legal advice and tells a client what’s in their best interest. A mediator is impartial and must always also be seen to be impartial. A casual comment could be misinterpreted. Clients feel vulnerable and its human nature to want their mediator to be on their side. However, a mediator’s role isn’t to decide which party is in the right. It’s the complete opposite. We need to enable them to see that battling one another and focusing on a past that can’t be changed, keeps them stuck in conflict. It’s my role to facilitate conversations so they can hear each other’s needs and concerns. Separating couples need to work together to find solutions and that’s the one thing they think they can’t do. However, with the intervention of a mediator it is possible. They may be sceptical about mediation and advised by family and friends that they need to fight to get what they need. When clients can show vulnerability and lay down their weapons, they are closer to a resolution that will work for each of them. I need to ensure they each feel safe enough to do that. They need to know I have heard them, and I understand their concerns. Imagine trying to demonstrate this whilst mediating a session with two hurt and angry people who no longer trust each other and struggle to communicate.

A recent case

My clients were able to resolve their finances at their 5th mediation session. The previous sessions had been tough on both and were difficult to mediate. A husband had a long-standing affair and whilst years had passed since they separated, the wife really struggled to accept the end of the marriage. She questioned what parts of the marriage had been ‘real’ and how she could ever trust again. The husband hadn’t wanted to separate but the relationship was fractured and couldn’t be healed. The wife was a lovely lady but hurt and angry and she was unable at times to contain her frustration. Her husband apologised and said that he didn’t know what else to do to make things right. It’s such a balancing act for a mediator. Mediation isn’t therapy and we focus on the future not the past – but to ignore the past is dangerous. It’s like sticking a plaster on a cut when the blood flow hasn’t been stemmed – the plaster will fall off just when things seem to be improving. There’s also a duty to make sure that the sessions move forward and that the husband didn’t feel that they were about chastising him for the affair. Throughout the sessions I was empathetic, listened very carefully to each of them and reiterated the ground rule of respectful communication. Several times I separated them into different rooms and reminded them why they were there and what the future might look like if they reached resolution. We all persevered.

The 4th session was particularly challenging. The wife was very emotional, and her pain manifested in anger and blame. Again, I listened well to each of them until they each felt sufficiently heard to move forward. The 5th session was a culmination of their hard work and mine – it’s why I do this difficult job. The atmosphere was very different. The clients had homework between sessions and had been busy compiling mortgage information and housing options. Each came prepared to work together to try and find solutions.  Mediation had enabled them to do something vital – separate themselves from the issues arising from their separation. They were no longer blaming each other and were both trying to find solutions. They now saw the issues as joint concerns and they were beginning to build trust. They found compromises they could each live with. They thanked me for my hard work and patience and asked if I had ever encountered a more difficult mediation. I had. They joked that I would surely develop some new grey hairs.

Supporting people through a trauma is never easy. The clients had found peace and were able to plan their respective futures. As for me – I have a good hairdresser and any new grey hairs will soon be banished.

Author: Sara Stoner, Family Mediator, Broxbourne & Potters Bar

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

Divorcing? 5 things you should know

  1. Divorce is a trauma and you are experiencing severe grief.

It’s important to understand that divorce grief is extremely painful but normal. You need to be patient with yourself. Most people take about two years to work their way through the grief process. 

Divorcing 5 things you should know

  1. Court proceedings often add fuel to the fire.

It’s hard to think calmly and logically when it feels like your world is crumbling around you. Scared and angry people may believe they must hire an aggressive solicitor who will fight for them. If both sides take this view and argue over every issue, then legal fees can soon mount up to tens of thousands of pounds each. Court should be an absolute last resort as it’s expensive, involves lengthy delays and is adversarial. There are other methods of dispute resolution that are far more fit for purpose and include: mediation (with or without solicitors present), medarb (a hybrid of mediation and arbitration), arbitration (you instruct a private judge to decide the issues you can’t resolve – it’s cheaper and much quicker than court) and collaborative law (you instruct a specially trained lawyer who will work with your ex spouse’s lawyer to reach a settlement). Do your research – the most expensive option is not always the best.

  1. You do have control over your future.

Clients often feel they have no control over their future. That’s not true. You can’t control how someone else behaves, but you can control how you respond. Good behaviour is often mirrored over time. When one person puts their weapons down, the other often follows their lead. It is possible to draw a line in the sand and move forward constructively. Don’t relinquish control over your future just because you can’t agree. Options such as mediation and collaborative law, allow you to make important decisions rather than a Judge imposing them on you.

  1. Remember to your children you are still a family.

When you split from a partner and don’t have children, you never have to see them again – if that’s what you want. It makes healing easier, but that ‘luxury’ doesn’t exist for parents. It’s the parental conflict or inability to communicate that hurts a child more than the actual divorce. To a child their parents are both their family whether they live together or apart. Visualise what your child will thank you for handling well when they are 21. Consider their graduation, birth of their child or their wedding. They will want both parents there – think about the long-term bigger picture. Communication will be difficult and strained initially but parents must move from exes to co-parents if children are to feel safe and secure.

  1. Know that you won’t always feel this bad.

The grief can feel all consuming and it’s hard to see the light at the end of the tunnel. When life feels overwhelming it’s important to take baby steps. Take one day at a time. Talk to friends and family. Consider therapy – non-judgemental listening is powerful. Make time for yourself – even if that just means a long bath or a walk. Focus on the future not the past – you can’t change the past, but you can experience a more peaceful future.

Author: Sara Stoner, Family Mediator, Broxbourne & Potters Bar

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

Divorce Forums & The Light At The End Of The Tunnel

A father on a divorce forum posted a family photograph of himself, his two children and his ex-wife. Everyone looked relaxed and happy. He said the photograph represented a significant milestone. He and his ex-wife separated 2.5 years ago and for most of that time their relationship had been very strained and volatile.

Divorce Forums

During the first year of separation there had been accusations and blame. Each felt they had been badly treated and they struggled to communicate. Both believed the other had ‘changed’ and not for the better. They had each experienced feelings of anger, hurt and resentment. Year two involved each striving for peace and an end to the conflict. However there were numerous misunderstandings and frustrations. After that they agreed that it was just too draining and that they would ‘parallel parent’. Parallel parenting is an arrangement in which separated parents disengage from each other and limit direct contact. Communication is minimal and indirect. Over time they realised that this arrangement upset the children. The children felt torn between them and apprehensive about even mentioning the other parent. Slowly over the last 6 months, they began to communicate about the children again via email or text message and this progressed to weekly telephone calls. Communication continued to improve and they attended a joint parents’ evening at their eldest son’s request – he had found the separate appointments ‘embarrassing’. They spoke to each other at handover and both noticed how much the children enjoyed observing this interaction. They had slowly moved from exes to co-parents. To their children it was simple; their family consisted of mum, dad and a sibling – regardless of the fact that their parents were separated.

When parents separate they have to work their way through the grieving cycle. Often they are at different stages and this can escalate hurt feelings and miscommunication. Family mediation can assist parents when they struggle to make important decisions about their family. Rather than relinquish control and ask a Judge to make decisions for them, a Mediator can facilitate the necessary conversations that focus on the future and not the past that can’t be changed.

Author: Sara Stoner, Family Mediator, Broxbourne & Potters Bar

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

 

Mediating Finances upon Divorce – Too Good to be True?

Clients often attend their Mediation Information and Assessment Meeting ‘MIAM’, wondering what mediation is really about. Some worry it’s about reconciliation at a time when they know the relationship has broken down – it isn’t. Other’s worry it’s a soft option and that only expensive litigation can get them the settlement they need. Mediation is anything but fluffy; it requires commitment and full and frank financial disclosure. It can be uncomfortable and challenging. However, it’s also quick, cost efficient and clients retain control of their own future.

Mediating Finances upon Divorce

Mediation is too good to be true…

A client told me that mediation sounded too good to be true. She asked why everyone isn’t doing it if it can save tens of thousands of pounds and avoid a long and often bitter court battle. Many separating couples feel that court is the only way forward as communication may be non-existent or extremely tense and they can’t agree. However that’s actually when mediation is often required and can assist. The next question is often, ‘Won’t I end up with a less favourable settlement if I don’t fight it out in court?’ Investing tens of thousands of pounds in a court process, doesn’t mean that it is the right process or the most advantageous. The courts are experiencing greater delays than ever before & a Judge, (when you finally get in front of one), is looking for fairness and how best to meet needs. It’s not about finding a winner. However to make litigation financially worthwhile clients often need to win. I encountered a couple with one asset of £500,000. One wanted a £300,000/£200,000 split and the other wanted £250,000 each. This was a particularly ugly court battle, but prior to their final hearing, each had borrowed £100,000 from their respective parents to finances the litigation. As this money had to be repaid, they had effectively reduced their £500,000 asset to £300,000. That litigation was clearly fuelled by anger and hurt. It’s very hard to walk away from a court battle when so much time, energy and money are invested

So just because you invest heavily in litigation, it doesn’t mean it’s a wise investment.

Focus Mediation was set up by Mary Banham-Hall, a highly experienced Family Lawyer. Long before mediation became popular, Mary felt that there was a better way to resolve family issues arising from separation or divorce. Our lawyer mediators know the law and we have huge collective experience representing spouses in financial proceedings. We know what’s practical and realistic and what past clients have achieved. Mediation allows clients to retain control over important decisions about their future. We fully support and encourage legal advice from solicitors. It helps clients to confidently make decisions in mediation so  their solicitor can then make the proposals binding.

Author: Sara Stoner, Family Mediator, Broxbourne & Potters Bar

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

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

 

 

 

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