MIAMs and Mediation

Having worked as a family mediator for a good few years now I’m used to asking clients whether they have any knowledge or past experience of mediation.  Most clients don’t have any and don’t know what to expect.

It’s like anything. If you want to buy a car you want to know what you’re buying. A top of the range sports car or a car that gets you safely round town. How do you know what’s going to be the right car for you? You probably need to test drive them.

That is why in family mediation we have an introductory meeting with clients where we explain what mediation involves. The meeting is about an hour-long – called a MIAM which simply means Mediation Intake Assessment Meeting – an opportunity for you to ask us any questions you like. If you are unsure about what to expect from mediation we will talk to you about how mediation works so by the end of the meeting you have a clearer picture. We will also ask you questions – because we want to know what’s going on for you and the issues you face, so we know how best to help you.

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So is it like going to Court?

No, it isn’t like going to Court. There’s no judgment, no evaluation. It’s a meeting usually just with you, to talk through the issues that are affecting you and your family.

The mediator is there to listen to you and may ask you questions about your situation.

The meeting takes much the same format for every client, so you can feel secure in the knowledge that your ex is not being treated differently from you.

Is it like going to a solicitor’s office?

No it’s not. The meeting is at an office but the mediator is there to listen to you and to explain how mediation works. The mediator will consider all the issues you are worried about, and will start to build up a picture of what’s going on between you and your ex.

The mediator’s understanding of your situation and concerns will be crucial if you go on to mediate, enabling them to help you both work through your impasse in a collaborative and practical way, without going to Court.

How much will it cost?

At Focus we have a sliding scale of costs depending on your finances, your income and capital and we offer legal aid at some of our branches.  This can mean mediation is free for you, but in any event it is usually much more affordable than fighting it out in court.

Will someone listen? Yes they will.

We are specialist mediators – it’s all we do. We know what’s important to you and we have the skills and expertise to help. We are all accredited with the Family Mediation Council.

With court costing over £400 just to issue an application, you should ask yourself if you want the stress of going in front of a judge with the added costs of a solicitor and perhaps even a barrister too.  Alternatively do you want to represent yourself?

You might choose either – because there are some cases that are not suitable for mediation. However if you don’t come to the MIAM you won’t know.

No one wants to buy the wrong car – why don’t you give us a call and see if mediation is the right vehicle for you?

Archer v Titchener

The nation has been gripped by the Rob & Helen’s saga in the Archers!

One interesting aspect which did not grab the headlines was baby Jack’s name. Rob wishes to call him “Gideon Titchener”. Theoretically there is nothing stopping Rob calling the baby “Gideon”.  However a court may well find it emotionally harmful to the child to have different names.

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Rob could make an application to the court for permission to change the child’s name formally to “Gideon”. The court would consider all relevant factors such as his name which appears on his birth certificate as “Jack Archer”, the circumstances surrounding his conception and the fact his half-brother is called Archer. Whether the parties are married is relevant, but divorce must be on the agenda.

It is rare that you can say decisively what you think a court would do but it seems highly unlikely in these circumstances that a court would give Rob permission to change “Jack’s” name.

It seems there is a lot in a name.

No one listening? Then stop shouting, you might get heard

Communication is complex. It is much more than words. Communication comprises a range of related activities, including, speech, facial expression, body language and most importantly of all, the subtext of the total communication package and critically what you do, as actions speak louder than a thousand words.

An example will help. If someone is shouting aggressively and waving their arms, this is likely to induce a panic reaction in the listener. In that state that they experience a rush of adrenaline which suspends their ability to process information and programmes them to fight, flee or freeze, the classic survival response.

 The person shouting has generated the opposite response from that intended. If they had spoken quietly without aggression, the panic response would not have overwhelmed their listener and the meaning of the words could have been satisfactorily conveyed. Literally, you might say ‘If you shout I can’t hear you!’

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‘Gorilla Family Moment’, photo taken by Pascal Walschots

Couples who are separating frequently say they cannot talk, can only communicate by email or text and seem inevitably to fight. Their conflict is so high it breaks out over anything and everything. One of the mediator’s tasks is to break this habit, if only for long enough to help the couple agree their settlement or what to do about their children.

So if you want to be heard and understood, talk quietly and not aggressively, listen thoughtfully to any response – and respond to it respectfully in a co-operative spirit and you might be heard and you might even start to communicate. True, exerting self-control is out of fashion, sometimes it’s even perceived as a weakness by a society which sees ‘chest thumping’ responses as a strength. But such an approach should be rediscovered – as it might be the only way to solve some problems which have remained painfully unresolved. Then you can both move on in a constructive way.

Mary will Feature on Radio 5 Live – Sunday 14th August 2016 at 11am

Mary will guest feature talking about divorce on BBC Radio 5 Live show “Raising the Bar with Rob Rinder” on Sunday 14th August at 11am.

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The previous shows in the series may be listened to Here.

Separation and divorce end a couple’s relationship – but what about the ongoing importance of the separated family for their children?

The importance of the family is perhaps something we all take for granted and under-value – until it is not there. What we know is that we all thrive better and fulfil our individual potential within a family unit where we can be nurtured, valued and supported. Children need to have secure attachments during their formative years and this is a fundamental and irreplaceable basic need. Sadly, when parents separate and are in conflict, are facing uncertainty and may be afraid of the future, they can lose sight of their children’s most basic needs.

Essentially after separation children usually have two homes where they need to belong and feel valued. Whilst children may spend more time in one home than the other, both homes are equally important. Parents may no longer be able to live together – but they still need to be able to operate as a functioning family albeit under two separate rooves.

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Achieving this can be tricky – but mediation provides the opportunity to come to terms with the new reality and process information and plan. Your whole life can be thrown into the air like a pack of cards – so you don’t know which way up they will land. If there are children, the family may be separated and living apart – possibly some distance apart, with the children moving between two homes. The assets and income will need to go twice as far and friends and family may be divided too. The most basic foundations of several lives will change.

At a time like this, people need a calm supportive environment to process what is happening to enable them to move forward and to limit any further damage to them, their family and assets. Fighting tends to protract matters and be both emotionally destructive and expensive. Mediation offers the opportunity to the whole family to be supported in renegotiating their relationships to create a separated but functioning family with different boundaries.  The mediator helps you retain control of the decision-making process – and plan for your separate futures kindly and constructively.

Mediation or solicitors? Which is the best route for a fast, cost-effective divorce?

If you are thinking about a divorce, your head will be full of worries about the future. Will you be able to afford two households? Who gets what? And how on earth do you “share the children”?

The last thing you want is uncertainty about the divorce procedure. Do you instruct a solicitor or do you come to a mediator? Here is a brief overview of the best possible use of both since the two approaches complement each other.

Mediation is usually by far and away the best process to use when considering arrangements for your children. You work together as parents, with the mediator’s help: round the table discussions are far more fruitful and less divisive than an exchange of solicitors’ correspondence or, heaven forbid, contested court proceedings. In mediation, an accredited mediator can give your children a voice by talking to them in an informal relaxed way and relaying their wishes and feelings back to you. This can be invaluable in helping you do the best possible job for them and in clarifying what they really think and want to happen.

So far as finances are concerned, if you are divorcing, you are aiming for a Consent Order which will record your eventual agreement and make it binding. This Consent Order must be connected to a formal divorce. So, one of you needs to file a divorce petition. You can download a divorce petition and file it yourself, but many people prefer to ask a solicitor to do this for them, so that the process is handled correctly. You will also probably want to take your solicitor’s advice on any financial agreement that you eventually reach. So: at least one of you needs to find a solicitor to start the divorce.

However, using a solicitor to take you through the process of disclosing your finances and negotiating a settlement can be time-consuming, expensive and divisive. This is where mediation comes in again.

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One of you contacts a mediation service, who will arrange to see each of you separately to get the background of your financial situation. Your mediator will also use this meeting to explain how mediation works. Here at Focus, we make a point of giving you the forms you need to complete at that first meeting, so that you come back to your first joint session with all your disclosure ready. We waste no time in helping you both establish the value of your home, the mortgage, any savings, pensions, debts: in short, we help you establish a clear picture of your finances for yourselves and for anyone advising you. This is an essential first step to sorting out any financial agreement.

In your second or third joint sessions we can help you negotiate a settlement. We look at the equity in the house, division of savings, allocation of debt, and provision of retirement income through pensions. We also look at your income and outgoings and help you work out your budgets in your separate households, which enables us to help you set an appropriate level of maintenance and child support.

We then write up all your figures in an open financial statement and your agreement in a memorandum of understanding. You are recommended to take both of these documents to your solicitors, who will draft a consent order for you. This will be put before a judge so that it can be made legally binding.

Your solicitor will then be able to finalise your divorce with a decree absolute, unless you have done it yourself.

As you can see, mediation is a useful procedure both for children and for finance, and can be educative and even healing at this difficult time. However, solicitors play an important part in the process too. So, mediators and solicitors together help separating couples sort out the many (often teething) problems inevitably arising and reach an agreement so as to leave this unpleasant episode in their lives behind them as fast and cost-effectively as possible.

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

The Bottom of the Rollercoaster – and what happens next

Sometimes in life we suddenly see something and realise that until that moment we have not understood it at all. I had one of those moments when someone described the rollercoaster of grief – because that is what the pain of separation can feel like. This image describes the emotional journey people take through grief – starting with denial and shock, fear and confusion, through anger and blame, shame and anxiety to the depression and helplessness of the low point of it all. This is arguably the worst point, as there is sorrow without the distractions of blame and anger. It is a time of realisation and coming to terms with the new reality, even for someone who wanted the relationship to end, as there is still change and loss. It can be hard. What people don’t always realise when they are in this dark place is that there are more stages to come on their journey. The stage of dialogue and bargaining eventually arrive and then acceptance and a plan for a new future. They can and will go on; they will have a life to live and a future.

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In summary, when couples separate they – and indeed their children – experience grief, as they are living through loss. This is best described as a rollercoaster of emotions and the traditional processes that have evolved through the decades to ‘help’ couples resolve their differences are wholly unsuited to actually resolving anything. This is because they are adversarial and tend to promote discord and holding on to extreme positions. Court proceedings may feel deeply attractive to the angry blaming person, as they offer an apparently legitimate outlet for their fury. By contrast mediation is an opportunity to listen, to try and understand each other, be mutually respectful and compromise. If you’re mad as fire, this will be unappealing. I’ve lost count of the number of clients when hearing about mediation and what it can achieve, say firmly: ‘Well that won’t work. My ex is very unreasonable. There’s no point in even trying to sort it out.’

But here’s the thing, no one ever said to me that they wouldn’t mediate because they were unreasonable. And here’s another thought – people do arrive at the stage of being ready to bargain and talk. They will want to sort it out and move on. It happens. It may be in the middle of court proceedings, it may be some other time, but when you get to that point, suddenly all the fighting and messing about seems utterly pointless, a complete waste of time and money. That is a great time to mediate, because mediation is fast and effective and you will get where you need to be surprisingly quickly. Everything can be sorted out, agreed and put behind you, you can move on from the conflict of the past and through dialogue and bargaining to acceptance and to a new and brighter future. You will have come up the other side of the rollercoaster and will be able to look back with relief on the journey you have accomplished – and be glad it is behind you. Nothing is so focused on getting you both to that point as mediation. Think about it.

FAULTY COURT CALCULATOR – UPDATE

FAULTY COURT CALCULATOR MAY HAVE CAUSED ERROS IN THOUSANDS OF DIVORCE SETTLEMENTS – UPDATE

According to the Law Society Gazette the outcome of more than 2,200 financial settlements on divorce may have been voided by the Form E software fault.

Justice Minister Shaillesh Vara MP has indicated in a statement to Parliament that the assets of more than 3,600 couples were miscalculated.  Those involved in the over 2,200 closed cases affected are to be written to by HMCTS, (the court service) and may need to re-apply to court to re-open or re-negotiate settlements (although the error may not have impacted upon the outcome in all of these cases).

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No court fee will be charged for applications to set aside or vary orders. Those involved in the 1,400 or so ongoing cases will have the issue flagged to them by HMCTS in order to avoid the error affecting their final orders.

A new version of the Form E is being uploaded, but with the automatic calculator being disabled whilst the future of the form is considered as part of broader court reforms.     Many family lawyers and mediators do not rely on the Form E automatic calculator in any event. They use their own assets schedules setting the figures out clearly and simply, often using Excel. Such cases will be unaffected by the problem. At Focus Mediation whilst we use Form E to collect information and documents, we have never used its calculator, our mediators always prepare our own.

Brexit or Brin? That is The Question . . .

Last night my hairdresser asked me ‘In or out?’ Everyone knows what this means – but how to decide? That is really the first question we should ask ourselves.

As a mediator I have observed people making decisions for over 17 years and many are motivated either by hope or fear – though some make decisions based on deeply held beliefs that are so strong they are part of their very identity. I’m not talking about those people, as they have decided.

Tribalism

Many of us decide things tribally – we identify with a certain group and vote with them. Unless you are UKIP, that doesn’t help you much on the in or out debate, as most political parties are split on the issue. So tribalism doesn’t work – unless you identify yourself as tribally European or tribally English – but if you are tribally Scottish, they are pro staying in. Actually that helps you decide, sort of. It is interesting to observe that tribalism on Brexit seemed to cause politicians to line up on the issue of benefit cuts for the disabled in the budget – with the pro leaving brigade supporting IDS and the pro staying in brigade behind the Chancellor. What relevance has Brexit to benefits cuts for the disabled? None. Pure tribalism.

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Mediation Decision-Making Matrix

Mediators understand how to approach decision-making constructively, intelligently and creatively. It’s their day-job. So complete the table with your hopes and fears then place in order of importance to you. This can help you decide ANYTHING.

Hopes for Brexit

Fears for Brexit

We will be economically better off

We will be worse off economically

We will be more secure and safer – less likelihood of war.

Security and safety will be reduced; we will be vulnerable and alone in a global world.

We will get control of our borders; migration will be reduced. No EU quotas – it’s an EU problem

The EU will let migrants pour over the Channel – you cannot police 1,000 miles of coastline; we will get all the migrants

Hopes for Brin

Fears for Brin

Add your own – you get the picture.

Using a rational system, non-adversarial – try and distance yourself from emotional rhetoric and tribalism – you decide on the most important issues, the probable outcomes on Brexit or Brin – and order of importance – for you. If you are altruistic – choose the best for the young or for all of us. Your ideas are as likely to be right as anyone’s. Think about probabilities and priorities. The experts don’t agree. We are all experts on this. Besides, it is more likely to help you decide to vote than listening to Boris or David! Oh yes – and the same is true if you are litigating at court or lawyers are writing letters on your behalf. Stop. Think. Use your own wisdom and trust yourself .- and use mediation systems for resolving problems, disputes and working out the future. It results in better interest-based results. Just saying – and this is my belief system, so is part of me, my identity. And I think I am right, but I would say that wouldn’t I?