Tag Archives: Custody and Residence

Proportionality

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

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.   There 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 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 not have imposed 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.

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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 decombobulating 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 many 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

Collateral Damage. The Hidden Cost of the Courts.

Exam Time in Schools- What price do children pay when parents are breaking up?

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When parents’ relationships break down, the aftershock is felt by all those around them. The first to be affected are often the children.

In November last year, Resolution (1) commissioned research which surveyed 14-22 year olds about the effect of their parent’s break-up, asking how it had directly affected them.

The survey uncovered that

  • One in five(19%) said they didn’t get the exam results they were hoping
  • The majority (65%) said that their GCSE exam results were affected 
  • 44% said A-levels suffered.
  • 15% said they had to move schools, which may have had a knock-on effect on exam results.

Children also experienced difficulties away from the exam room.

  • Almost a quarter (24%) said that they struggled to complete homework, essays or assignments. And
  • more than one in 10 (11%) said they found themselves “getting into more trouble at school, college or university,” and
  • 12% confessed to skipping lessons.

Parents often ask us how they can minimise the effects on children and reduce the impact that their break-up has on their children’s academics and potentially their future career prospects.

At Focus Mediation, our mediators will keep your children firmly in the centre of the picture when discussing divorce and separation. We can help you to help your children in the following ways:

1 By keeping it out of court

Mediation is a way to work out how best to separate in a way which has the least impact on your children. Going to court is hard on those involved and those around them- it’s how you imagine it and ten times worse in terms of stress and often in terms of time spent and costs incurred.

2 Make agreements about what you say and do in front of the children

In mediation we can help you to set ground rules for yourselves about how you will speak to each other and conduct yourselves in front of the children and the extent to which they will be involved in what is going on for you. This is invaluable when feelings are still raw and emotions difficult to contain.

3 Make contact arrangements children-focused

Our mediators can help you to make agreements which meet your interests whilst keeping the wellbeing of your children in the foreground at all times.

It is important that your children have time to study and time to relax as well as spending time with the two of you.

As mediators we will always test with you the reality of any proposals which could inhibit their ability to learn and to flourish. At the very least we can help you to make child-centred arrangements to get your children through this stressful summer period of exam preparation and performance.

It is difficult enough for young people in this academically competitive world where every grade counts. Most parents will fully support the creation of a plan which eases the pain and the difficulties inevitably caused by their break-up which impact on their children.

4 Joined up Parenting

No child likes to be caught between the two opposing views of the people we are closest to. In mediation, we can also help you to smooth out any foreseeable future bumps in the road: we can help you to look at what happens if you disagree on choices your children make, how you want to communicate with each other and the extent to which you can co-parent in a joined up way, even though you are no longer together.

Having safe parameters within which they can operate is also vital for children, particularly as they grow older and behaviour can become more challenging. Remember: any gaps in communication are easy to exploit for a wily teenager!

5 Speaking to your children, enabling their voices to be heard.

Finally, we offer direct consultation with your children, enabling them to have a voice in the changes taking place. We speak confidentially with them, away from mediation and then, with their agreement, feed back to parents what they want them to hear, without fear of taking sides or hurting your feelings.

Because from what we hear when we consult children, they care as much about you as you do about them.

Any thoughts about this, please do Tweet us 

or share your thoughts on our Facebook page – we welcome your feedback and comments

 

 

[1] the body representing 6,500 family law professionals in England and Wales,

Divorce and Half Term Blues in Oxford

If you are going through divorce or separation, February half term can be a real challenge. No money, no partner, and rotten weather. The children need you to be cheerful, but it’s hard.

At Focus Mediation, we do all we can to get you through this difficult time. Below are two excellent websites giving you ideas for entertaining the kids in and around Oxford at half term.

Looking at the bigger picture, even if you are doing the divorce yourself, using on-line forms, you need some professional help to steer you through your financial settlement. Our mediators can do just that: they will help you and your ex-partner look at the figures, discuss the choices that you have and then draw up a plan, which can be turned into a Consent Order.

They can also help you sort out a suitable way of sharing caring for the children. Our mediators are qualified to talk to children, and then feed back their views to you, if you think that would help you make the right arrangements for them: research shows that when children are involved in mediation, the arrangements made for their care stand a far greater chance of succeeding.

Children feel valued by this process. They feel they have been given a voice in the confusing world of a separating family. It reduces their anxiety and lessens the burden of guilt and responsibility that many of them feel. They often have good ideas about what might work, and their views can clear up conflicting impressions. As their parents, you can feel reassured that you are doing the best possible job in sorting out their future, and you may even find you can communicate better between yourselves because you are working together.

One last Half Term perk: mediation at Focus Mediation in Oxford is free, if you qualify for legal aid. If only one of you qualifies, you both get the assessment meeting (MIAM) and the first joint session free. Why not give it a try? Meanwhile, here’s those websites we promised:

http://www.dayoutwiththekids.co.uk/things-to-do/Oxford                      http://www.weekendatdads.co.uk/

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Home Sweet Habitat at Pitt Rivers Museum (PRM) – ‘Explore how animals and humans make themselves at home, and build your own little den. Crafts, object handling and a family friendly talk at 3pm.’ Monday 16-Wednesday 18 February 1-4pm. Entrance to PRM is via the Oxford University Museum of Natural History (OUMNH) on Parks Road OX1 3PW. The PRM entrance is at the far wall of the OUMNH.

There’s a whole raft of ‘how to’ activities 14-22 February at the Story Museum, 42 Pembroke Street OX1 1BP including the Teddy Bear Pancake Sleepover(!) and, for kids aged 8+, Science Oxford’s Fire Show. Full details at www.storymuseum.org.uk/whats-on/february-half-term/

Popular children’s entertainer Nick Cope is giving a concert at Barefoot Books in Summertown, 294 Banbury Road OX2 7ED on Tuesday 17 February from 1:30-2:15pm. Tickets £5 per person, big or small. Nick will be playing songs from his new CD The Pirate’s Breakfast, so BFB suggest you give him a treat by coming along in your best pirate costume!

Also at BFB, the Salt Box Music Co. will be running hands-on music sessions for very young children 12-1:15pm on Wednesday 18 February. Go to their website www.saltboxmusic.co.uk/index.php for details of all their activities in and around Oxford.

Again at BFB, there is African drumming 10:30-11:30 am and a magic show 2-3pm on Thursday 19 February, plus an all-day science workshop run by Bright Sparks Science for children aged 5-9 yrs from 9:30am-3:30pm on Friday 20 February. See www.brightsparksscience.co.uk and www.barefootbooks.com/files/8214/2202/5601/BFB_Oxford_Calendar_0215_A3.pdf for everything that’s happening at BFB during February.

For More information Contact Us Here

Mediation: Oxford Divorce Stress Buster

Oxford house prices were quoted in the Oxford Times recently as the highest in the UK apart from London. This places extra stress on separating couples who now need two places to live instead of one, but it doesn’t look affordable

January and February are tough months for everybody. They’re especially tough if you have just worked through a strained Christmas and decided that you can’t hold your marriage together any longer: you’ve decided to separate. The year ahead looks impossible. Were will you each live? How will you share the children? Talking has become dangerous. Rows erupt, important issues are no-go areas, communication is at an all-time low, along with your spirits.

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Mediation with Focus Mediation in Oxford is designed to cope with all this stress. It is run by Caroline Friend, who lives near Oxford, she understands Oxford problems and has helped many local people with all the same issues you are now facing. You might do well to stand on the shoulders of those who have gone this way before you.

You start by coming to a MIAM: a Mediation Information and Assessment Meeting. This is time spent alone with your Focus mediator, who will listen to your story and then explain the process of divorce and of how mediation works in detail. Then the joint sessions start, spaced to suit you, your timetables and your budgets. Mediation gives you a safe, neutral environment in which you can tackle your impossible problems.

Sally thought she and Jo were putting their marriage back on track, and was deeply shocked when Jo chose the week before Christmas to announce he was filing for divorce. The next two weeks were grim: you could cut the atmosphere at home with a knife. However, once the mediator had seen them both, they could get a handle on what they needed to do: a session looking at their income and outgoings, so as to work out what rent Jo could afford, and time spent working out a child-care pattern that both parents felt comfortable with: it wasn’t ideal – not seeing your children every day will never be that – but it respected the children’s needs and gave both parents plenty of time with them. All that was completed in two weeks and reduced the stress considerably.

A couple more sessions dealt with the bigger picture of the house and how to share the equity in it. The mediator encouraged both parents to put the children’s stability first, and helped them take difficult decisions in the light of current court practice. She helped them identify any maintenance that would be appropriate, and dealt with any disparity in their pensions. Even more importantly, they established ways of communicating with each other to make arrangements for the children without quarrelling.

Focus Mediation is there to help. It might make all the difference to your new year.

Separated but still living under the same roof? A Classic London Problem

Separating couples want to separate – obvious you may well say, but not always possible in the fantastically highly priced housing bubble which London has become. Separation gives you breathing space whilst you consider longer term options and would reduce the tension following relationship break down. Unfortunately where the costs of renting a second property are as high as they are in London, then this can be completely impossible.

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Increasing numbers of couples are forced to remain in the family home together after their relationship has broken down – often for a considerable period of time. This can be excruciating for them and their children, if they are caught in the crossfire.

This problem is particularly acute in London where, as reported in the Daily Mail recently, London rents are so high in some areas that it would be infinitely cheaper to rent in Barcelona and commute to London for work! The Mail article detailed the situation faced by one Londoner Mr Cookney trying to rent in North West London

“A one-bedroom flat in West Hampstead would cost around £1,505 a month, according to Zoopla.

He then added in council tax at approximately £75 and a zone 1-2 travelcard to get to his job in the City, which costs £116.80, making a total of £1,697.

Mr Cookney said: ‘I chose West Hampstead because I know and like the area, and it doesn’t seem a stretch to suggest that a young professional may afford to live there’

He then compared the prices to Barcelona where a three-bedroom flat, with three balconies, a stone’s throw away from the metro, in the ‘nice and safe’ area of Les Corts costs £580 per month”

Read more: http://www.dailymail.co.uk/news/article-2477291/London-rents-high-cheaper-live-BARCELONA-commute-heres-.html#ixzz3OXNvLsZW

This may seem an extreme example but highlights the exceptionally high cost of living in London.

If following separation you need to remain in London for work then there may be no other option than continuing to live under the same roof until you can find a longer term solution, if there is one.

Focus Mediation has an office at Euston, (The Office Group, 1 Euston Square, 40 Melton Street, Euston NW1 2FD). Our mediators are experienced in helping couples faced with this type of problem after their relationship has ended. We will work with you during this time, not only to look at options for rehousing the family in two homes, but also to work out an agreed set of ground rules on how to behave towards each to reduce tensions, whilst you work together in mediation to reach a settlement. This can be done at a pace which suits you. Where you have children and both accept that your relationship is over then resolving matters quickly by agreement is essential in ensuring you both are able to move forward in separate homes and lives.

London Schools and Divorce in London

When a couple separate there are many issues to resolve. Most couples will want to provide as much stability as possible for their children at this uncertain time. One of the biggest problems in London is schools and catchment areas.

Separating in London can present additional problems compared to most other areas of the UK in terms of schooling, especially if the only option is to sell the family home. Down-sizing to another house could mean children being uprooted from schools and friends at a time when they most need their support network outside the home.

This year the number of 4 year old children applying for school places in London exceeded 100,000 for the first time. One in five children missed out on their chosen first place.

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The pan-London admission board received a record 102,441 applications for primary school places, an increase of three per cent last year.

The Evening Standard reported in November 2014 that “81 per cent received their first preference school, 92 per cent were offered one of their top three and 95 per cent one of their top six school choices”

The boroughs with the lowest numbers of children getting their first preference school were Wandsworth and Kensington and Chelsea, at 73 per cent and 61 per cent respectively.

Parents in Newham were most likely to get their first preference school, with 90 per cent being successful. In Barking and Dagenham and Havering 89 per cent of parents got their first preference school.”

It is common to read of situations where families living in the same street in London fail to get a school place in local popular schools, as they are as little as 500m outside the catchment area. This can be randomly unfair.

Focus London mediators will help you think through the options with regard to your family home and consider the implications for your children and their schools. In mediation you can consider these problems together and with our help work out which options are realistic, which provide the best outcomes for you and your children.

For more information email: info@focus-mediation.co.uk

The Unreported Flaws Behind Penelope Leach’s ‘Toxic Truth’

Parenting guru Penelope Leach’s recent claim that after parents split, no child under four can spend even one night away from their primary carer – usually their mother without the risk of lasting damage – has caused a storm of controversy in family law. Her latest book, Family Breakdown, cites “undisputed evidence” that overnight separation from mum can adversely affect a child’s brain development.

These trenchant certainties threaten to have an enormous impact on parents and judges who are often confused about what is best after couples split.

Leach’s influence is even more worrying because science shows her “undisputed evidence” may well be wrong. She relies on a study from Australia (McIntosh el al 2010) Responding to this study, the American Psychological Association (APA) has published a paper, Social Science and Parenting Plans for Young Children: A Consensus Report,  endorsed by 110 of the world’s leading child mental health experts from 15 countries, repudiating its conclusions. The lead author of the Australian study has subsequently dropped the conclusions that Leach relies upon, stating: “Cautions against overnight care during the first three years are not supported.” Sadly for so many children and their parents, Leach does not include this addendum in her book.

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We cannot afford for such important questions about child welfare to become an ideological battleground. Parents, mediators, lawyers  – and the judiciary – need clear guidance grounded in sound evidence. That’s why the APA review is so valuable, since it provides an overview of 45 years of settled and accepted research.

“We found no support for the idea that children under four (some say under six) need to spend nearly all their time living with only one parent, when their other parent is also loving and attentive,” the lead author Professor Richard Warshak said. “Warnings against infants and toddlers spending overnight time with each parent are inconsistent with what we know about the development of strong, positive parent-child relationships. Babies and toddlers need parents who respond consistently, affectionately and sensitively to their needs. They do not need, and most do not have, one parent’s full-time, round-the-clock presence.”

At Focus we can, in many cases if you and your children want, talk to your children in confidence about their thoughts, wishes and feelings.  It won’t be easy for either of you, but at the end of it we hope that you will have reached an agreement that you both feel works for you and most importantly your children.

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