Tag Archives: Collaborative law

Bloody mindedness

When people are hurt, they often like to hurt back.

An eye for and eye, a tooth for a tooth and all that. If s/he left me to go off with that bastard/bitch, they must suffer for it. They will suffer, I’ll make sure of it, even if I lose out too, it will be worth it!  Does anyone ever say that in mediation? Rarely if ever, but they may think it and take up inexplicable negotiating positions or prolong arguments over nothing. They can be very bloody minded over sorting the simplest things out. There are reasons for this, such as they cannot let go of the relationship, cannot leave the connection with their ex, they are desperate to ‘win’ so have to keep fighting, they want to have the ‘last word’ and/or their fury fuels the conflict and then the conflict finds an outlet in:

  • Quarrelsome solicitors’ letters setting out endless arguments about anything and everything, much of may be it immaterial to settling the important issues like who gets the house or is it sold, what happens about pensions and the maintenance? If people fight over silly things you know you are in trouble, so the food mixer or kettle is an indication they are dredging the bottom of the barrel and this is caused by their feelings, not the importance of the bottom of the barrel.
  • Putting forward extremely unfair positions that would make the other person lose out massively (punishment, ‘make them suffer’)
  • And worst of all, arguing through the children, using them as weapons and instruments of revenge, getting them ‘onside’ and trying to turn them against their other parent.
"Divorce Your Loved One With Dignity" Bob Willoughby © , Frank Sinatra, on the Warner Brothers set of Marriage On The Rocks, 1965

Bob Willoughby © Frank Sinatra, on the Warner Brothers set of Marriage On The Rocks, 1965

On the surface you have an argument, often translated into a legal narrative of this statute and these cases, versus a countering position and cases. That is the lawyers’ attempts to try and reduce the fighting into something logical, with rational arguments that can be explained and reasoned. Mostly the parties don’t give a damn about all that, what they mind about is getting back at the bastard/ bitch who has ruined their life. This isn’t every case by any means, but it is common enough to be classified as a type of case I think of as ‘Bloodymindedness’.

If you know someone who has embarked on a divorce in this manner and you really care about them, you won’t simply listen to their rantings, you’ll gently question some of their statements and turn some of their thoughts on their head. For example, you might ask what the costs of fighting have been so far and talk about the type of holiday, car or suchlike they could have bought for that instead. If they blame it all on the other person, you might ask them what they did to try to change the dynamic. If they have tried, and many will have done, you might observe it is very difficult to get two warring people to make peace simultaneously, as they often both try, but at different times and get a bad response.

The beauty of mediating your settlement, arrangements for the children, divorce, whatever, is you go off from your first session together with a shared action-plan and joint commitment to changing boundaries and behaving differently. You can develop functional separated boundaries, with some rules you put in place about what ever is causing difficulty. Solicitors’ letters will not accomplish that. Mediation can turn things around and put you on a better path, people need to understand about that possibility, because it is game changing, and thank goodness for it.

Think of it as an escape hatch from misery for families who are splitting up.

Hearing about Mediation before you can apply to Court – why it’s a good idea.

The Children and Families Act came into force on 22nd of April 2014. For the first time it requires would be applicants to court to hear about mediation and how it might be able to help them, before making their court application. This simply gives them a choice of court or mediation before they embark on the court route. As such it is a useful intervention. This meeting is fast becoming known as a ‘mediation awareness meeting’? Its formal name is  the Mediation Intake Assessment Meeting or MIAM.

A qualified mediator will tell couples about mediation and the alternatives to court adjudication. This is greatly needed, as put simply, if mediators don’t tell people about how mediation may help them, mostly people do not understand it and don’t try mediation. Before the compulsory referral to hear about mediation from a mediator in 1999, there were only a few hundred mediations a year. After legal aid applicants had to hear about mediation from a mediator in 1999, this rose to about 13,500 mediations a year and it has stayed about the same every year that is until last May, when all compulsory referrals to a mediator for mediation assessment stopped, along with the abolition of legal aid for family cases. Then, couples unaware of mediation simply went straight to court and the number of court applications has increased massively everywhere, with many fewer mediations taking place. The fact is, in many cases lawyers do not sell mediation, they are more likely to sell legal services and to negotiate the case in a conventional, positional way. This increase in adversarial resolution is bad for families, turning them into opponents in what is often an expensive, long drawn out ‘ping pong’ of letters and court hearings.

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Compulsory mediation awareness meetings do not mean compulsory mediation, nevertheless many people will choose to go on to mediate and save themselves and their families a great deal of time, money and avoidable stress. If some family lawyers don’t like it, and it is only some lawyers, we have to ask why are they so worried about people simply hearing what mediation has to offer? They don’t have to mediate and no one is saying people should not hear about the legal resolution methods. If people need to go to court, they can still go to court, if they want lawyers to write letters then they can pay for that, but a tiny proportion of cases do actually get decided by a judge, so deciding them even earlier in mediation seems like a good idea to most people.

The reality is that in most disputes over children, the worst thing that can happen to a family is a brutal fight over the children, replete with welfare reports, adversarial arguments and adjudication or shuttle diplomacy between lawyers at court, cobbling something together under immense pressure and making that into an order. A series of mediation sessions over a few weeks or months with changes being introduced and reviewed, improvements made and children’s views taken on board where possible, is just so much better for most families.

Where property and finance issues are concerned, mediation has a massively important role to play in resolving settlements quickly and at proportionate cost. How much do you think should be spent on legal fees  of resolving a financial settlement on divorce? Should it be 10% , 20% or some other proportion of the overall value of the family pot?  This is the thorny problem the courts are not addressing. There is a court rule that the legal costs must be proportionate to the value of a dispute. This is universally ignored, as it seems to convey no meaning to the judges or the legal representatives. It is common for the costs to be half or even more of the value of the dispute – where is the sense in that? If you bear in mind that in most family cases, unless it’s a very short marriage or there’s a pre nup, there is a starting point or yardstick of equal division of the assets, then the value of the dispute is probably no more than between 10% to 25% of the overall pot. Legal costs frequently exceed 10% to 25% of the value of the family pot. How can that to be regarded as proportionate to the value of the dispute? It isn’t proportionate at all.

So, in a nutshell, the changes with regard to compulsory mediation assessment meetings brought in by the Children and Families Act are mostly welcome and long overdue.  Compulsory mediation meetings before court applications can be made will enable a significant number of families to avoid court proceedings and expensive legal costs by choosing mediation, once they know how it can help them. Previously, they often simply issued proceedings and the legal route was the default option. Now a real choice is being offered and it is up to mediators and lawyers alike to help couples make the best choice for their family, taking into account everything relevant to the family.  It is the couple that matters most and finding the best way forward for them, not what matters to the lawyer or the mediator – selling the service they prefer to sell. The family is at the heart of separation and divorce, how they sort out their arrangements, which process they use, should be an informed decision they take and the advent of mediation assessment will help ensure public awareness of mediation when they need it most.

The Children and Families Act 2014 – Family Law is Changing

Heralded as the biggest change to the family law system in a generation, will today’s changes to the family legal system make any difference to real families? Certainly, shortening the time taken   for important cases about children in care to be decided by the courts will be a big improvement.  Children caught up in the care system were previously waiting over a year for their cases to be decided, which is far too long and very bad for those children’s happiness and life chances. The new time limit for a decision will be six months, a great improvement.

 

However, what about the majority of the families needing help sorting things out? For most families some of the changes are more apparent than real. Arguments over arrangements for the children are not likely to improve because people are supposed to avoid the words ‘residence’ and ‘contact’, just as they didn’t change when we swapped the words ‘custody’ and ‘access’ for ‘residence’ and ‘contact’. The issue of who the children live with when is still a thorny one and changing the words to ‘child arrangements’ makes little difference. Other than that, there is a change to a theoretical single family court, but again, this means that cases can be allocated to the county court where there are professional judges or the magistrates where there are lay (but trained) magistrates – but both will now be called the “Family Court”.  Will this make a huge material difference to court users given the decision-makers and buildings will be the same as before the name changed to “Family Court” remains to be seen!  There will still be the High Court for cases needed high court adjudication.  Some cases that would previously have been decided by a judge may be heard by a magistrate – but it will all be the “Family Court” so that’s all right then!

 

People who can afford it may feel increasingly inclined to pay for private adjudication by a family law expert in the field, to ensure the quality of the decision – this is called arbitration and might produce a dual system of private justice completely outside the state court system. It would save government money, but create a dual system for the haves and have-nots. There could be an issue over the quality of the decisions and interpretation of the law, if many complex and difficult cases are decided by non family law experts.

 

Against this background family mediation looks like a very sane and sensible option.  An experienced, qualified mediator helps a couple to make their own arrangements for their children and settle their own financial settlement.  The impartial mediator gives relevant legal information to help decision-making and the couple know what they are agreeing to. It is a fast affordable alternative to the vagaries of the court system and at least now people have to hear about mediation properly from a mediator.  Couples share the cost of the mediator and pay nothing if they qualify for legal aid, whereas there is no legal aid for most family law work any more, there is for family mediation. If couples don’t mediate they have to pay the whole costs of their separate lawyers, instead of share the cost of their mediation.  Before anyone can bring a court application they will mostly now have to hear about mediation before they can apply to court. This last change is one of the most sensible changes the new Act brings in and it is long overdue. Court fees are expensive and rising –  pointless if unnecessary. People will now be given a real choice and awareness of the options for sorting out their settlement and arrangements without using the conventional legal and court route. Mediation is the prime alternative and mediators can now explain it to couples properly, instead of people assuming it’s unsuitable for them or not even realising it exists and that legal aid still exists to help them mediate.

 

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The Children and Families Act comes into force on 22nd of April 2014

For the first time it requires would be applicants to court to hear about mediation and how it might be able to help them, before making their court application. This simply gives them a choice of court or mediation before they embark on the court route. As such it is a useful intervention. This meeting is fast becoming known as a ‘mediation awareness meeting’ – its formal name is the Mediation Intake Assessment Meeting or MIAM.  A qualified mediator will simply tell couples about mediation and the alternatives to court adjudication.
This is greatly needed, as put simply, if mediators don’t tell people about how mediation may help them, mostly people do not understand it and don’t try mediation. Before the compulsory referral to hear about mediation from a mediator in 1999, there were only a few hundred mediations a year. After legal aid applicants had to hear about mediation from a mediator in 1999, this rose to about 13,500 mediations a year and it has stayed about the same every year until last May, when all compulsory referrals to a mediator for mediation assessment stopped along with the abolition of legal aid for family cases. Then couples unaware of mediation simply went straight to court and the number of court applications has increased massively everywhere, with many fewer mediations taking place. The fact is, in many cases lawyers do not sell mediation; they are more likely to sell legal services and to negotiate the case in a conventional positional way. This increase in adversarial resolution is bad for families, turning them into opponents in what is often an expensive, long drawn out ping pong of letters and or court hearings.

 

Compulsory mediation awareness meetings do not mean compulsory mediation, but many people will choose to go on to mediate and save themselves and their families a great deal of time, money and avoidable stress. If some family lawyers don’t like it, and it is only some lawyers, we have to ask why are they so worried about people simply hearing what mediation has to offer? These people don’t have to mediate and no one is saying people should not hear about legal resolution methods. If people need to go to court, they can still go to court, if they want lawyers to write letters then they can pay for that, but a tiny proportion of cases do actually get decided by a judge, so deciding them even earlier in mediation seems like a good idea to most people.

 

The reality is that in most disputes over children, the worst thing that can happen to a family is a brutal fight over the children, replete with welfare reports, adversarial arguments and adjudication or shuttle diplomacy between lawyers at court, cobbling something together under immense pressure and making that into an order. A series of mediation sessions over a few weeks or months with changes being introduced and reviewed, improvements made and children’s views taken on board where possible, is just so much better for most families.

 

Where property and finance issues are concerned, mediation has a massively important role to play in resolving settlements fast and at proportionate cost. How much do you think should be spent on legal fees for resolving a financial settlement on divorce? Should it be 10% or 20% or some other proportion of the overall value of the family pot?  This is the thorny problem the courts are not addressing. There is a court rule that the legal costs must be proportionate to the value of a dispute. This is universally ignored, as it seems to convey no meaning to the judges or the legal representatives. It is common for the costs to be a third or half or even more of the value of the dispute – where is the sense in that? If you bear in mind that in most family cases, unless it’s a very short marriage or there’s a pre-nup., there is a starting point or yardstick of equal division of the assets, then the value of the dispute is probably no more than between 10% to 25% of the overall pot. Legal costs frequently exceed 10% to 25% of the value of the family pot. How can that to be regarded as proportionate to the value of the dispute? It isn’t proportionate at all.

 

So, in a nutshell, the changes with regard to compulsory mediation assessment meetings brought in by the Children and Families Act are mostly welcome and long overdue.  Compulsory mediation meetings before court applications can be made will enable a significant number of families to avoid court proceedings and expensive legal costs by choosing mediation, once they know how it can help them. Previously they often simply issued proceedings and the legal route was the default option. Now a real choice is being offered and it is up to mediators and lawyers alike to help couples make the best choice for their family, taking into account everything relevant to the family.  It is the couple that matters most and finding the best way forward for them, not what matters to the lawyer or the mediator – each trying to sell the service they prefer to sell. The family is at the heart of separation and divorce, how they sort out their arrangements, which process they use should be an informed decision they take and the advent of mediation assessment will help ensure public awareness of mediation when they need it most.  This is needed simply because without it as we have seen, people do not know about mediation or find out about it until it is too late.  There has to be a compulsory  mediation awareness stage  as once people have started going down the court route, mediation referral can be a bit late for many of them to gain the most benefit in terms of the expense, stress and delays of court proceedings.

Divorce Resolution Options

“Help! I’m getting divorced. Do I need a family lawyer? A family mediator? A Collaborative Family Lawyer?
I need to understand about family law – where should I go first?”

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When you split up there’s a plethora of options which can be bewildering. Everyone has an opinion – and wants you to use their services and preferably not services they do not offer. This is your life and your choice and decisions you take about where to go first for help can shape the route you take to resolution. It therefore makes sense to explore the fastest and most cost effective route to resolution first, as you may not need to spend more time and money on more time-consuming and expensive resolution options.

At Focus there will be an assessment meeting either together or apart as you prefer. We will listen to your situation and work out with you the issues to be resolved and check if you get legal aid. We can explain about other resolution options and indeed, two Focus mediators are able to offer Collaborative Family Law as well as mediation, if you prefer that. Most of our mediators are lawyer mediators, and your case will be dealt with by the mediator with the right back-ground and experience to ensure you receive good quality legal information and the right help.

Other resolution options include: 

Court proceedings – you pay your own lawyers for a long process or act in person; usually takes about a year (property and finance) or less if about children. You become opponents in an adversarial fight, which often makes matters worse and often costs more than the monetary difference between you. It usually makes sense to avoid court if you can but it is ideal for getting a time-table for resolution, forcing a recalcitrant party to participate and disclose information and document and for some people is the only realistic option

Lawyer led negotiations – you pay your lawyers to complete disclosure and negotiate the best deal they can for you; this will again be adversarial (see above) and if you have round table negotiations, if these fail then you are left with the court option to resolve matters – unless you mediate

Collaborative Family Law – you are each represented by your owned specially trained collaborative family lawyer and you and they sign a participation agreement dis-barring the lawyers from acting for you if the process breaks down and you go to court, this holds everyone in the process until you resolve the settlement, but if it does break-down, it is expensive (mostly they succeed).

Mediation – you can mediate at any stage in your family settlement, though the earlier you both engage in mediation the higher the potential savings in the costs of other processes. However, sometimes one party has no interest in mediating for example because they are sitting on all the assets or have the children. In those circumstances sometimes court proceedings may be needed to get them to the mediation table with a realistic attitude. It is never too early or too late to mediate – especially if you are stuck in seemingly endless dispute over everything that is costing a lot and making life hard for you. This because very often the dispute may be about the feelings and belief that drive disputes and not just about the apparent legal narrative that is being discussed between lawyers and at court. Mediation is the only way to address these important aspects of your situation and it can unlock arrangements that a court adjudicated outcome has no way of imposing. It is often these tailored arrangements that make the most difference to people and the way they feel about their settlement.

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