Tag Archives: Dispute

Jacket Pockets

When people split up they often try to get the better of the other person. They most often fight about money. Resources feel scarce. You may think if the other person has more, you will have less. This seems unfair and a struggle for money can begin. However, our instincts lead us astray so often in this situation. Why? Simply because if the case is decided by a judge or when it is settled by agreement, all the assets and liabilities are added up and the total divided very often equally but in any event what each person has spent has gone, so making your ex pay for something makes no difference, as their position is taken onto account and you’ll pay half. Whatever has been spent on anything is effectively paid pretty mulch equally once those assets are split, as each party’s current position is added into the pot and that effectively takes their spending pre settlement into account. Examples include:

  • Bank accounts and investments
  • Properties
  • Pensions
  • Credit cards and debt

The way to think of it is as a jacket with lots of pockets. The pockets have money or debt in them. The up to date value of the pockets will normally be used in the settlement or judgment. Very occasionally someone may succeed in an adding back argument, for example, adding back a significant value they argue the other person has squandered in some way or applied in a way that is prejudicial to the outcome. Much would depend on scale and if the application of money was unusual and prejudicial to the person who had no control or say in it.

jacket

Very often couples argue fiercely over which pocket something is paid from. They don’t want it paid from ‘their’ pocket, it must come from the other person’s pocket. This is an illusion when the pockets are totalled as it simply makes no difference.

Recently I was mediating a case where everyone got very bogged down in pockets arguments. Even their advisers struggled to remember it was all one jacket. Each was taking the same drawings from their business and getting their bills paid on top, they were ticking over OK, but one wasn’t paid any child support, the other wanted child support. This would mean the other person didn’t have enough to live on, they would have to take more from the business or get into debt. It was a joint business, so very much a one jacket situation. There needed to be a discussion about the extra costs of the children and an agreement for that to be met where it arose. However there was a feeling of outrage no child support was being paid. It looked as though an application to the Child Maintenance Service would be made. This would result in an assessment on historic and very high figures that would necessarily involve the paying person having to take more from one jacket pocket to pay it, even if it was overdraft and debt, and then later it would be taken into account. These people has agreed to take less from their business not more, so the whole argument was a pointless totemic argument over the contents of the pockets of the same jacket, the jacket they were going to be splitting between them anyway and they had agreed it would be split equally! Other examples include:

  • Someone making a big pension contribution to take money off the balance sheet and out of their pocket – it does no such thing, as the pension is part of the jacket and the contribution and its tax relief is included and split!.
  • Buying an expensive car then seeking to depreciate it as it isn’t new any more – this takes money off the balance sheet, but the car is usually included at its purchase price
  • Leaving money undrawn in a business controlled by one party, in the hope no one will include the full value of the undrawn capital or take into account the undrawn income as relevant to maintenance. It has to be one or the other. It is usually quantified and included.

I have lost count of how often this type of thing happens and people think their thinking is so original and they are so clever and they will get more in ‘their’ pockets and be better off. People who work with separating couples for long will have come across all this countless times, they know where the bodies are buried!  How ferociously people fight over all this – when it doesn’t matter. Thought you should know, just in case it affects you. You’d be better of saving your breath to cool your porridge, as they say. For more case studies, please visit: http://www.focus-mediation.co.uk/case-studies

Bring Back the Calderbank – Stop Mad Litigation

A few years ago when people divorced they were encouraged to make offers to settle that were “Without Prejudice Save As To Costs”. These were known as Calderbank offers, after the name of the divorce case in which they were first made. The idea was you made these without prejudice offers that the judge would see at your appointment to try and settle the case – and they would try to use them to help people settle. There’d also be open offers that the judge would see. These would usually be very positional, by which I mean they’d be at the extreme end of what was likely to be the outcome, so were pretty useless – and we still have them.

WITHOUT

People are afraid to tell the judge what they’d really pay to settle in case s/he plays split the difference and they end up with an unfair settlement. So there’d be this hidden second tier of offers called the Calderbanks. These were always without prejudice, which meant the judge at trial didn’t get to see them and they couldn’t prejudice his or her decision-making. These Calderbank offers were a very serious matter. People had to put their money where their mouth was. If you put in a good Calderbank offer, then the other side was at risk of having to pay your costs from one month after the Calderbank offer was made. You’d usually get your costs if your Calderbank offer was better than the trail judge’s award – so if you beat the judgment, you got your costs. This really focused minds. Your lawyers would tell you if they thought you might end up having to pay the other side’s costs. It made people think and make sensible offers. It made a lot of cases settle earlier than they do now.

 These days there are no costs consequences to taking up an unreasonable position, as each side pays their own costs. Now people can just mouth any old rubbish, be as unreasonable as they like, yet still each side must normally pay their own costs. The total costs are paid from the assets before they’re split, so effectively you pay half of the total costs each – or half of each other’s costs. This can be a bit unfair if one party has very expensive lawyers or is unrepresented, but it’s just how it works. There is no incentive to be reasonable.

 In non family civil cases, people still have the equivalent of the Calderbank offer system. It does help prevent unreasonable negotiating positions. I think we should bring it back and didn’t agree with its removal in the first place, as it allows people to hold out for unfair negotiating positions with impunity. It forces the reasonable person to go to trial or settle for less than they should get, with no costs consequences. Mad!

Whatever.  The importance of ‘Whatever’ in History.  

The countless aeons of history that have gone before us are full of fighting and killing, full of domination and oppression, full of taking over and wiping out, conversion, subjection and vanquishing, the growth and decline of empires and peoples. The strong overcome; weakness is obliterated and suffers.

Does extremism make people violent or do psychologically disturbed people get attracted to the violence, power, fear and atrocities possible in the life devoted to the evangelism of the mad, bad and truly horrific Whatever? Does war and violent evangelism offer an apparently pure excuse for the anger and alienation of some young people, waiting for their lives to start? I say “Whatever” because historically the motive for aggression can be anything, that’s the point really.  Some wars are simply about land and resources – we want ‘your’ this, that or the other and we will kill as many of ‘you’ as we have to in order to get it. Oh, and the rest of ‘you’ can be our slaves.

Then there are the crusades – our religion or philosophy, culture or Whatever is right and yours is wrong, so we will kill as many of you as we have to, to convert you to our ways plus we will destroy your homes and cities and flatten your country until there is no one left to oppose us. Then we will have won and you will believe what we believe or you’ll be annihilated and that will be the victory of our Whatever.  In the Middle Ages the English kings led the crusades to the East to convert the people they broadly called the infidel to Christianity.  It seems mad today doesn’t it? Now we have the descendants of those peoples waging jihad against their peoples and neighbours to establish their caliphate, because they think if they kill and destroy enough, they will be able to take over and rule, convert and build an empire, like Hitler or Stalin or any other mad megalomaniac from the countless centuries that have gone before trying to impose their Whatever by force.

 math-conflict

Of course, each thinks that their Whatever is different, theirs is the Real Whatever, but for everyone else coping with the consequences of the onslaught, it’s the onslaught that matters, that gets noticed, the Whatever is the price of peace. So here we are again, there always seems to be somewhere in the world where someone is trying to convert to Whatever by killing. It used be to Ireland. For hundreds of years there was fighting and killing on the face of it between two types of Christians, the Catholics and the Protestants. Any of them knew what they were doing was wholly contrary to their Christian beliefs, to the “in my Father’s house there are many mansions” of the Bible they were purporting to defend. Everyone could see it wasn’t really about religion, it was wholly anti-religious. So is the killing, maiming and destruction that occurs in the name of religion going on today, whether it is between Jews and Arabs, different types of Muslims or different types of anyone else. The text is always “We are right you are wrong, mend ‘your’ ways to our ways, or die” but the subtext is always that of fighting, killing and destruction.

The apparent motive for the aggression must be on the face of it a pure and totemic idea, that people can be blindly and suicidally committed to. However, the apparent motive can be almost anything, “Whatever.”  The main requirement is that death in its cause will create martyrs, so the young can be recruited and turned to its service and kill and die and yet live forever in heaven. Interestingly, those dying in the Christian crusades were martyrs, as are those dying today in the jihads. Everything changes, but nothing changes, the death and destruction are the same, only the names of the protagonists are different.  Whatever.

What is it about mankind that attracts large numbers of people to war, fighting and death? The defenders are fighting for their lives, for peace and survival. The attackers are usually fighting to impose their Whatever on others. Why? When will we ever learn? We were getting there. There is little appetite in the Western world for war, we have seen its terrors and want none of it. So it is all the more frightening that in some parts of the world now education is vilified and girls cannot be educated, women live like prisoners in their homes, while boys and men are indoctrinated in “Whatever” and prepared for modern crusades. Ignorance is our greatest enemy; ignorance and starvation and the desperate fight for survival that leads peoples out of their barren starved, parched lands to seek water and life. What will we do about them?

The problems we face as humans are so massive and all encompassing; we surely have to find new ways to resolve our differences and those problems. Yet how can the mediation of peaceful solutions wage war on terror, death and destruction? We have a race on our hands to answer that question, because it is an idea whose time has come and we have to make it happen fast. Mankind must stop fighting and start talking about how to solve the problems of the world together. Unless we start to prioritise the mediation of solutions and agreements that are life affirming, tolerant and create a peaceful world we are all dead. That is my Whatever.

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