Tag Archives: Dispute resolution

The Importance of rodents in my decision to become a mediator

I qualified as a solicitor in 1979 and most of my professional life was spent working as a family lawyer.  In the late 1990s I was handling the usual caseload of mainly financial cases and some children work.  A male client came to my office distraught one Monday morning. His two children had come to him for the weekend as usual and were refusing to go home to their mother with whom they lived.  The problem was caused by the mother’s new husband. He had bought the children’s father out of his share of the house and was beginning to assert his own house rules. I advised that the client the children had to go back immediately to their mother, he could not unilaterally change the children’s residence without the court’s approval or their mother agreeing. The mother most definitely did not agree and urgent faxes arrived threatening immediate court proceedings for restoration of residence, which were subsequently issued and faxed to us as well.
The father became more and more agitated. The children, who were not little, were in the car outside.  They wanted to be heard, but no one could listen to them. They were refusing to go to their mother’s home. They were going to run away and keep running away until they were allowed to stay with their father.  Could they see the judge – no they couldn’t – I knew the judge would not want to see them so they could not tell the judge they were not going to go home.
Whatever could’ve happened to make these children refuse so adamantly to return home to their mother when they had lived with her for so many years, apparently quite happily? The catalyst for their departure was their step-father.  The advent of the stepparents can often completely destabilise an otherwise harmonious home.  Territory can become an issue, we are all, after all, little furry mammals and we do like our nests to feel the way we want them.  There is a big difference between the adult view of the world and the view of children.  These children wanted their hamsters to remain in their bedrooms. They were their hamsters and their bedrooms. Their stepfather was insistent that the hamsters should live in the garage. I suspect this may have been the tip of quite a big iceberg, but it was the presenting factor we solemnly discussed at the door of the court, after the mother had issued her emergency application that Monday morning. I can’t remember the detail, it was a long time ago, but I think that the mother spoke at length with the children. She came to realise that there was no way they were going to go back to live with her. They would come and see her – they wanted a reversal of the arrangement they had had with her and their father for so many years. They wish to live with their father and have regular and generous contact with their mother.

The mother fought through the day. To say she was distraught was an understatement. In the end she had to accept that the children would stay with their father – the case and could not end any other way, as they had told their mother (from the car) and indirectly everyone at court, even the judge, that if they were made to return to their mother’s home, they would keep running away to get back to their father’s until they were allowed to stay there.

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There then remained the issue of the hamsters, at that time living in the mother’s and stepfather’s garage. It took a long time to negotiate the release of the hamsters, who were clearly hostages inextricably linked in the mother’s mind with having her children and she did not want them to go. I spent some time negotiating the release of the hamsters.   I returned to the office convinced that I had participated in a procedure which was insanely unsuitable and unfit for the purpose it was being used for.  I did not regard this as a sensible way of solving this family problem, nor was it a sensible use of expensive court time and legal expertise. Indeed no legal expertise was required, it was completely irrelevant.

I then discovered Mediation – how much kinder and how much more humane would a meeting have been to discuss all these issues outside court? There might have been a direct consultation with the children, to ascertain their wishes and feelings so that could inform parental decision-making. There was simply no question in my mind, mediation was the future for so many cases that were currently, at that time, being resolved judicially. That was many years ago now and I’m pleased to say that case would today probably be mediated. Things have improved a great deal, but we still have a way to go.

Defusing Arguments

Why argue? The instinct is to try and persuade the other person you are right and they are wrong. In return they are likely to try and persuade you they are right, so the debate begins. Sometimes issues are clarified and a shared understanding emerges, that is a good outcome, but often the opposite happens.  Commonly the dispute is more about the relationship and not wanting to back down, than reaching a shared understanding. Sometimes the original issues are forgotten or changed as the conflict mounts, especially if the debate becomes personal (“that is so typical of you, you don’t give a stuff about anyone . . .’)

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Once the dispute gets personal, the scene is set for the conflict to escalate and damage  or even destroy the relationship. Sometimes the reason for the conflict IS the relationship, which may involve toxic dynamics that cause endless conflict. The problem is the conflict, not the apparent issue, you know this for sure if there are constant or repeated arguments about anything and everything.

So the argument is the outlet for the conflict, which has a life of its own. One person may try to stop the argument, but the other may block this, arguing relentlessly, expanding the area of disagreement, dragging up old grudges and inventing new ones. Mediators know about conflict, they start where the conflict is, not with the presenting disagreement, as that is often incidental.

How can you defuse arguments?

Well, first of all start where the other person is. Listen to them, understand what they are saying, show that you understand by summarising to them what they told you. Then ask them a question about it, make them think, perhaps they might not be exactly right? Always focus on the issues and speak calmly and precisely, preferably don’t sound as though you are laying down the law. Better to be questioning as people always believe things they work out for themselves. Carefully avoid personal attacks and adopt logical explanatory reasoning, never blowing things out of proportion or attacking the other person.  Suggest adjourning the discussion to another time, when everyone has calmed down. Say you want to ‘think’ thus introducing the idea that people can change their minds thoughtfully without loss of face and power.  Try not to tell or boss  the other person, instead ask them relevant questions, which may begin ‘What if . . ‘ or ‘do you think that . . .?

Fighting Over Nothing

When is disagreement about something and when is it about nothing?

Perhaps it may help to rephrase that… Often conflict causes disagreements about not very much or even nothing at all! The problem is the conflict, not the issue.  We see this all the time in mediation. It’s why mediation is so much better at resolving disputes than litigation. The legal system can only deal with the legal basis of disagreements, even if there isn’t really a legal basis, it cannot help with the non legal conflict drivers, even when that is the problem that needs sorting out.

Let’s look at a typical example. Two children are deeply jealous of their mother’s attention for the other child.  They grow up and courteously dislike each other. They always compete for parental time and attention and resent the time the mother spends with their sibling. If challenged they would deny this, but the conflict is deeply embedded in their sub conscious minds, it will never go away and informs all their exchanges in relation to their mother. That mother becomes ill and develops Dementia. One of them starts to look after her. The other has difficulty seeing the mother and is sometimes denied access. There are huge control issues and a legal dispute may well emerge. On the face of it that dispute will be about the Power of Attorney, who controls the mother’s money or makes decisions about her health and welfare. There may be a dispute about her jewellery all the terms of her Will, whether she had capacity to make the Will or Power of Attorney, particularly if it favours one sibling over the other. Was it fair, was it right or was undue influence brought to bear on the elderly parent?

In reality, assessing the capacity of someone with dementia is notoriously difficult, as it comes and goes. So legal proceedings on this can be fraught with difficulty and be a bit of a gamble. Also, the dispute originates in the sibling relationship and entrenched conflict. The legal dispute is an expression of that. Hence settling that litigation will be really hard, because it isn’t just about the legal rights and wrongs. Costs will mount and relationships worsen and all the time the cure would be mediation. Mediation is the medicine that reaches the parts litigation can’t reach. Mediation deals with the root cause, not the symptoms. Litigation in cases like this is akin to amputation for an infection. Treat the infection and you may well preserve something precious and save great suffering and stress. Litigate and the losses can be incalculable. It certainly rarely improves the situation!

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It’s the same in the workplace, in the work team. If people can’t get along they quarrel and precious work time and energy is wasted in their conflict.  If the the conflict is bad enough then stalemate can result, paralysing your business. Yet the reason you may have recruited two very different people and asked them to work together may be good.  They may have a complimentary skills and you want to stop the conflict between them and harness their different skills to produce useful outcomes for your business. The legal remedy is disciplinary or grievance procedures and finally termination or redundancy. This is an incredibly expensive gamble and diverts you and your team from what you want to be doing – running the business. A workplace mediator can often help teams work together, solving your problem so amputation isn’t necessary.

So when you seem to have an intractable problem between people, ask yourself is it ‘them’ or the presenting issue? If you solve this issue, will there always be something else? Might a chat with a mediator be the most use to you?
You have nothing to lose and quite a lot to gain.

No Judges

This week, instead of  a blog we’ve something a little different.

Four months since our case was listed,

We had no judge, the court had missed it.

Counsel for the other side was cross

Three of his cases were a total loss.

Three in two weeks had not been heard,

“Its really getting quite absurd!”

(Read about it in his blog)

The clients spent a lot in costs

Their case adjourned, is this all lost?

It costs a lot if you pay twice,

It really isnt very nice.

They reformed our family justice system,

The High and County Court – you missed ‘em,

Before it worked, but cost a lot,

So they did something to make it stop.

 

What reform will be a flop?

Make people fed up and go away

And sort things out another way?

You go to court and get no judge,

Its just a wee bit hard to fudge.

Unless we pretend the courts are there

And sit our teddies on the judge’s chair.

Dont go to court, its too expensive

The cost of it should make you pensive.

You simply must use mediation;

If that doesnt work, then arbitration!

That takes the disputes out of court

And saves the cash George Osborne sought.

Theyre too busy saying its a success                    

To own up its an awful mess.

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.

Conflict Junkies

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

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

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

What do Mediators do?

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

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

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

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

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

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

Mediation is hard work – but worth it.

Gold Standard for Family Mediators

At Focus we celebrate our successes and the attainment by our mediators of significant professional achievements. Our family mediators work hard towards the achievement of their recognition as a fully competent mediator, qualified to mediate cases for the Legal Aid Agency. Whilst very few of our cases are legal aid these days, we still put our trainees through that competence assessment, simply because it is so demanding and is the Gold Standard for family mediators.

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Our trainees work hard under close supervision with very experienced mediators and this training takes one to two years of intensive work. We have two professional Practice Consultants in our team to help with this training. This year we have got two mediators through their competence portfolio, Geraldine and Joanna. They have been duly crowned and handed their magic wands (essential equipment for every mediator) as well as being supplied with a large amount of ‘Emergency Chocolate’ to help them through those extra stressful and difficult cases. Well done Geraldine and Jo!

When people fight, they are so busy fighting, they give thought neither to ‘why?’ nor to ‘better solutions’.

The physiology of conflict is pre-historic and rooted in our ancient brain area, the part that makes us react fast and instinctively to the threat of the tiger. It is the ‘Shoot first, ask questions later’ response. Fight, freeze or flee – these responses are ideally suited to facing the tiger, but not well suited to modern life in all its complexity.

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The primary fight response escalates the disagreement to the point where the fight has a life of its own and everyone forgets the original trigger. This is how feuds start. How family members stop speaking for years or even forever. This is how peoples of different faiths and cultures end up in conflict that haunts generations, for centuries. Where two or more belief systems clash, forget logic, reason, negotiation and fairness; conflict rapidly descends into chaos, death and destruction. Death to the Different.

Examples of this through the millennia are legion – as well as current.  Human-kind has to learn how to resolve disputes or how to live with them.  Mediation teaches people to live and let live, work out ways of co-existing, of understanding. It can transform a primitive and instinctive first response into a transformative way out of deadlock. Perhaps we should teach it in schools.

Young couples take Divorce to new year low

The divorce rate is retreating substantially from the highs of 1991.  The ‘seven year itch’ seems to be a feature of the past. Couples married in 2005 are 24% more likely still to be together after seven years than their 1991 predecessors. The divorce rate over the first three years of marriage is down 48% on the 1991 high*.

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Historically two thirds of divorce petitions were brought by women who were calling time on their marriages owing to infidelity or their husband’s unreasonable behaviour. Women used to be more aggrieved about bearing the main burden for child-care and the chores, whilst increasingly working themselves. Nowadays, their husbands are pulling their weight in the home and with the children and there is less resentment at the unfairness of the division of labour destroying marriages.

 

The figures are also greatly affected by the modern social acceptance of co-habitation – marriages that might previously have ended in an early divorce, are simply not taking place. Most couples live together before they marry and if it doesn’t work out then they split up without divorcing. The implications statistically for those who marry are good – but the figures obscure the vast problems of couples in co-habitations that split up – the effects on their families of relationship break-down is just as destructive and de-stabilising as divorce, both for the individuals concerned and for society.

*according to ONS statistics

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