Tag Archives: Family

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.

Financial Settlements on Family Breakdown – How to Get it Done.

Mediators and lawyers have their own role to play in helping you to reach decisions following on from your separation.  Most of the hard work is done by you both during the mediation sessions.  The two of you will discuss the issues that need to be resolved, with the help of the mediator.  The mediator is there to help you to communicate in a constructive way while your respective lawyers will help you individually by advising you about the proposals.   They can then translate the settlement proposals into a legally binding agreement or submit it to the court for the court’s approval.

An out of court settlement is something you often hear about.  It is a settlement that is often reached within the mediation process.  It can then be endorsed and approved by the court to make it legally binding.

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For a financial settlement to be binding it is important that both of you disclose to each other your respective financial positions.   This would be the same whether your settlement was reached through mediation, through solicitors or through court.  You cannot come to an agreement if you don’t know what the assets and incomes are.  This process is called full financial disclosure.  You are then able to have discussions and negotiate a settlement   Even in court most settlements are reached through discussion and negotiation rather than the Judge making your decisions for you.  In mediation, you can go straight to those discussions after the financial disclosure stage, without waiting for the court to give you appointments and paying for costly court fees, and solicitors’ and barristers’ costs.

Just because you and your ex can’t communicate doesn’t mean that you have to go to court.  Mediation can help you look at how your relationship can be improved to enable you to resolve your issues, particularly communication.  You can become more co-operative and make your own decisions together.  The benefit of mediation is that it is the two of you who will be making the decisions about you and your children, rather than having a Judge decide what is best for your future.

Do you think that you will be better able to communicate if you have solicitors writing letters between you?  No, I suspect not too.  Often what you said and what you meant can get misunderstood or blurred by using a third party.  The advantage of mediation is that you are both putting forward your views and the other can listen and respond at the time, not 2 or 3 weeks later.  The mediator can help by translating and clarifying if necessary.  Then, in a constructive and problem-solving way you talk through the options and work out what is best for your separated family. Then you do it, job done!

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.

So much for justice, we’ve learned to live with an unfair dysfunctional system and find weird ways around the worst problems it causes. Just don’t expect it to make sense!

Many Divorces are based on lies, but you can’t defend them. 

Countless times it turns out in mediation that two people, who experienced the same event, interpreted it totally differently. Each understood what was happening in their own way, then afterwards, thought about it and overlaid it with different layers of meaning from their reflections about what happened. The most common issue in the early stages of family breakdown is whose fault it was that the marriage broke down. One may say it was the affair, but the other may say it was the constant rows, their poor relationship that pre-dated the affair. It will often feel desperately important to people to feel their conscience is clear and the break up wasn’t their fault. Many people find it impossible to believe that if it’s not your fault you don’t get a better settlement. Of course, they may think if they make the other person feel bad enough, guilt may help them to a greater share of the money. That is usually not the case.

Whilst defended divorces are rare these days they do still happen. The person who defends usually does so because they feel the divorce petition is a lie. They usually agree the marriage is over and then they usually cross petition, as they want the divorce to be granted on the basis the other person was to blame, and so their cross petition sets out all the reasons their spouse has actually caused the marriage to end.

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In a divorce based on fault not separation, the petition has to be based on adultery or unreasonable behaviour and in either case it has to be the cause of the breakdown of the marriage in the sense of make that particular petitioner feel they can’t live with that respondent. So it is very personal to them and doesn’t have to reach a level of proof such that a reasonable person would find it intolerable to live with the petitioner. If the petitioner has forgiven the behaviour or adultery, then it cannot be used in the petition, so it’s no good dragging up ancient history. Forgiven has a specific meaning and if you have lived with the respondent for a period or periods together totalling six months or more since you found out about the behaviour or adultery, then you cannot rely on it in your divorce petition. This can cause a lot of injustice. So a spouse who tried hard to forgive someone for committing adultery and struggled on in the marriage but later called it a day, may not be able to rely on that adultery to divorce their spouse, unless it is continuing or continued to within six months of the petition.  It doesn’t matter that it was actually the reason for the break-down. To add insult to injury, if after separation the injured party then has an affair, most people would say that didn’t cause the marriage break-down, but it is still legally adultery and what’s more it may well be the only adultery that can be used in the petition, as it hasn’t been legally forgiven!  To make it even worse, if you are the respondent you can find yourself facing an order you pay the divorce costs! So plenty of room for unfairness and dispute.

Where petitions based on adultery are concerned, you only need a sentence saying the respondent has committed adultery with someone the respondent doesn’t name, they find it intolerable to live with the respondent and seek a divorce. You can no longer muck rake by dragging in the name of the person who you think they committed adultery with, so no more co-respondents.

The other fault-based petition is founded on unreasonable behaviour and more detail has to be given to justify the divorce. There is an old rule of thumb of half a side of A4 and a few paragraphs. So typically a few lines of general outline, followed by the first, the worst and the last, then a concluding paragraph saying the effect the unreasonable behaviour has had on the respondent, for example, made them depressed, miserable, sleepless, feel deeply unhappy and unloved – and importantly that the marriage is over and they seek to end it with a divorce.

In those rare cases when divorces are defended, the court does everything in its power to stop it. We at Focus Mediation have over our fifteen years and approaching ten thousand cases, mediated a number of defended divorces with cross petitions. They usually end in the same way. Either and usually both the petition and cross petition is amended to remove the most offensive allegations, then the divorce proceeds on the basis of both petition and cross petition, with usually no order for costs. Normally the costs by then will be £3,000 – £10,000 between the parties, money completely down the drain and each will usually pay their own costs. Many hours will be spent arguing over the detail of the reasons for the divorce, because it feels so important to that couple, but not actually because it is important in any way that matters.

Sometimes the respondent may feel that the allegations touch on and criticise their handling of the children and might cause troubles over them having the children if not challenged. There is even a way around this. You can say the divorce particulars are not agreed, but you’ll allow the divorce to proceed on the basis that the fact you have not defended it does not mean you accept the petition and the fact it wasn’t defended cannot be relied on as evidence it was true in the context of any other proceedings. Job done, you can produce that letter at court if you need to in those other proceedings if such ever occur. Then it’s likely the court would make you plead that behaviour again and prove it in those other proceedings.

Judges hate defended divorces with a passion and they do all they can to stop them. If you defend you can expect a drubbing at court, even though you may feel outraged at what is happening to you, the judge will be just as outraged you could defend a divorce in their court, so not much sympathy there.

So in conclusion, divorce petitions must follow technical rules and cannot just be about what you feel is the reason for the divorce. Often they will be about something different, but it qualifies as the legal grounds for the divorce, which may not be the real reason your marriage ended at all. This may make you mad and upset, but as we all know the Law’s an ass, so don’t expect the judge to agree with you or think you’ll get “Justice” because you won’t. Sorry, but don’t be silly! You can’t  go to court for justice on your divorce, who cares whose fault it is? Only you.  The judge will not let you have your day in court, not if they can help it.

The answer is to change the Law to stop all this, they were going to do that many moons ago, but dropped it. The tabloids were out-raged that people would just get divorced for no reason; the government had to drop the Bill. So here we are still with antiquated divorce laws that make a sad situation worse and make people wash their dirty linen in public, so to speak. Mad, bad and stupid divorce laws do nothing to ease the path of broken hearts to a civilised divorce. They encourage arguments then deny the right of reply and the use of the courts to establish truth. So many divorces are based on lies and lawyers can do nothing about it, save advise people to bite the bullet and let it go – along with the marriage.
Mediation at least helps you end it with dignity and kindness.

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.

Lots of new enforcement rules for the new Child Maintenance Service, so why did they drop the word “Enforcement” from its name?

The Child Support Agency (CSA) will close and is being replaced by the Child Maintenance Service – but they’ve dropped the words “and Enforcement” from its title – because that’s what it will do. So we can’t say what it’s to do on the tin, it might upset people! There will be changes to the child support calculation. The old basic formula (15% of the paying parent’s net income for one child, 20% for two and 25% for three or more children) is being replaced by rather less memorable percentages of the gross income.

 

  1. There will be a £20 application fee and collection charges. There will be additional charges if the child maintenance service has to collect money from the paying parent and that will be 20% on top of the child maintenance amount and the receiving parent will have their maintenance reduced by 4%, so those are quite significant payments, particularly for the paying parent.  However, if you make the arrangements for payment direct between you these charges do not apply, so it’s very much in everyone’s interest to avoid using the CMS if they can.

 

  1. Transfer of CSA cases to CMS. Over the next few years everyone using the CSA will have their cases closed, so once the new service is working well, parents will be given six months notice their CSA cases are closing and you then have the option of applying to the CMS if you need to BUT you can always contact out and a agree yourselves direct.

 

  1. CSA Arrears. If you’ve got to arrears of maintenance of the CSA those stand and they can still be enforced, so they’re not going to disappear, but you may have the same problems you’ve got now – though the CMS and can help setting up and collecting maintenance and its new powers are likely to make it very effective at this.

 

  1. HMRC to tell CMS paying parent’s income  Perhaps the most effective change is that the CMS will use information from Her Majesty’s Revenue and Customs (HMRC) to access information about the income of the  paying parent’s income and this will be checked with HMRC each year to make sure the calculation is still correct. This is a really practical development, as previously some people who might not want to defraud the HMRC,  might still play games with the CSA, now they can’t.

 

  1. Family-Based Arrangements – DIY  Before you can apply to the CMS you will speak to the Child Maintenance Options Service to talk about whether you can make a Family-Based Arrangements instead. Although they will try and encourage you to make your own arrangements where possible (as this will save the CMS money) you can apply to the CMS.

 

  1. Process If you apply the CMS will contact HMRC and find out the paying parent’s income, then using information given to them by the parent with whom the children live – the CMS will just assess the paying parent and tell them what to pay.  This information includes how many children are in each household and how many overnight stays the children have with the paying parent.  HMRC will use people’s National Insurance numbers to try and find them if they have disappeared, so it should be harder to escape paying.

 

  1. Once the maintenance is calculated there are two payment options:
  • Direct pay, where the calculation is done but  you sort it out between yourselves
  • Collect and Pay, where the CMS will collect the money from the paying parent and can enforce arrears, but charge you.

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The CMS calculates child maintenance using the paying parent’s gross income before deductions, to work out the payment – previously pension contributions tax and national insurance could be deducted. Other income such as interest on savings, income from a company, or on rental property is ignored in the initial calculations. Assets such as savings and property are also ignored. If the paying parent has other income or savings you can ask the standard child maintenance calculation to be varied so that these are taken into account. An important note – income of the paying parent’s partner is not included in the calculation, never has been, no change. Details of special rules are beyond the remit of this article.

 

The rates; there are different rates of child maintenance depending on the paying parent’s income.

 

There are nil, flat and reduced rates for none or low income parents, but for most parents paying maintenance the situation is set out below:

 

  • The basic rate of child maintenance: the paying parent pays the basic rate if none of the other rates apply. It’s a percentage of the paying parent’s gross income calculated in two stages:
  • Stage one –  the paying parent’s gross income is reduced depending on the number of children living with them, if any, this includes the children of the new partner living with them.

So –  Stage one example:

If there’s one child living with the paying parent the percentage gross income is reduced by 11%  two children  it’s 14% reduction and three or more it’s a 16% reduction.

  • Stage two

Maintenance is a percentage of the amount left from the gross income after any deductions are made in stage one. The percentage depends on the number of children that need to be paid for. The amount is rounded to the nearest pound.

 

Number of children applied for Percentage of gross income up to £800 Percentage of gross income over £800
One 12% 9%
Two 16% 12%
Three or more children 19% 15%

 

If you share care of your child – and this does mean overnight stays – then the child maintenance award can be reduced by a seventh if on average of the child or children spends 52 -103 nights of the year with the paying parent, and so on and so forth.

If the paying parent has other children they don’t live with from another relationship, then that will reduce the amount of maintenance paid to both families.

 

Useful sources of information:

www.gov.uk/child-maintenance                 There is an online calculator

 

Remember if you are or have been married there may be spousal maintenance due in addition, so worrying overmuch about the CMS may be pointless.

 

Enforcement:

 

The CMS has a range of potentially draconian powers to enforce payment – they can:

  • Take money directly from your earnings.
  • Take money directly from your bank, building society and post office accounts
  • Use enforcement powers through the courts to get  child maintenance paid and
  • Get orders you pay these court costs as well
  • This can affect your credit rating and make it difficult to get loans or mortgages
  • The CMS can apply to court for a Liability Order and then
  • Send bailiffs to go to your home and seize belongings
  • Put a charge against your property or other assets so you can’t sell or re-mortgage
  • Force the sale of your property or assets
  • Take away your driving licence and
  • Send you to prison.

 

If people try to avoid paying child maintenance by giving the wrong information or none, or don’t tell CMS their circumstances have changed or have disposed of assets so they can’t enforce maintenance – there is a long list of rules getting tough evasion and collection action. There may be some rather sad cases, especially if they get it wrong.

 

What are the changes intended to achieve?

 

The gargantuan cost of the CSA has been out of all proportion to the value of maintenance it collected. It has struggled to get it right and to collect money from determined non payers. The changes are intended to bring about a huge change as follows:

  1. Reduce the costs to the tax payer of collecting child maintenance
  2. Increase accuracy of assessment by using HMRC information about income
  3. Collect more child maintenance with better enforcement powers
  4. Make people see they will have to pay so
  5. They calculate the payments themselves and pay without using the CMS, so see 1 above!

 

Will it work? Probably in most cases . . . . but we shall see what effect the Law of Unintended Consequences has this time. . . ..

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.

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.

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.

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.