Tag Archives: Judges

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.

two mannequins fighting over 100 dollars

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.

 justice

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.

Today’s Challenge: Describe the Benefits of Mediation and What it Does in Two Sentences?

On 22nd May about 150 mediators, judges of various flavours, policy makers and politicians, assembled at The Met in Leeds for the annual Civil Mediation Council (CMC) conference. (We will get to the challenge in a minute). The glitterati of the mediation profession were there, along with those members of the judiciary sympathetic to mediation as a means to resolve disputes. The message from On High was clear, the courts need more cases to settle and avoid trial, as the present demand for adjudication cannot be met, there are not enough courts or judges and there’s certainly not enough money.

Mediation is the most probable alternative to court. It saves time, money and stress, so why don’t people try to mediate before issuing court proceedings? There were many theories, but the most persuasive was that many people want to go to court because they believe the judge will agree with them, they will be vindicated, the ‘other side’ will lose, suffer and be humiliated. They will get what they want. Of course, they probably won’t get what they want, both sides feel the same and can’t both be right.  Also, the costs frequently exceed the value of the dispute by a considerable margin, so it ends up as a poor investment.  Though it’s questionable if applying to court can ever be regarded as an investment; an expensive gamble might be a more accurate description.

Most people wish they’d never started court proceedings long before they end, when everyone is just desperate for it to be over. By then if not before, mediation is usually the best way out and of course, we all know that very few cases go to full trial, so the revenge/ vindication sought is a satisfaction rarely achieved.

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We heard from Lord Faulks the government is committed to mediation and wishes to extend its use in the resolution of disputes.  Lord Justice Briggs said the same thing. Then we established that the Jackson reforms last year have not, in fact, increased the take up of mediation as much as expected, despite government policy and reform and the unarguable fact that many cases at court are simply in the wrong forum for sorting them out. People need help with resolution not help with fighting, however angry they feel – it is counter-intuitive. There were workshops examining online mediation, compulsory mediation, mediation in schools, mediation in the political process and ACAS. The constellation of experts assembled was inspiring.

Joshua Rosenberg (BBC legal commentator and expert) helpfully described what mediators should do to increase public awareness of mediation. He had done the training, saw what it could achieve and was all for it – but people don’t know what it can do for them or how it works. He thinks we need a two sentence description of the benefits of mediation and what it can do. Then people may better understand and try mediation, instead of litigating first and regretting it later. So – the challenge is to find two sentences describing mediation in such a way that ordinary people will know what it means. There follow some examples:-

  • Mediation reaches the parts of the dispute that court doesn’t and gives people more choices about their way forward that the Law. Mediation is fast, affordable and starts where you are to sort out disputes in ways acceptable to both of you, so you can move on
  • If you are in dispute resist the temptation to invest your time and money arguing why you are right and fighting, as in the end most people do a deal and the sooner the better.  By mediating first you can save the most time, money and stress. So start by seeing what you can agree in mediation rather than start with an expensive legal ritual that drives you poles apart.
  • When in dispute, think carefully about what you want to achieve. Grind your opponent into the ground? Hurt them like they hurt you? Or sort it out and move on with your life? Mediation lets you end it swiftly and cost effectively. The price of justice is an uncertain outcome at vast expense and with huge delays, the benefits of mediation are fast, affordable certainty and it’s over.  No brainer.

The problem is, these definitions come from a mediator – we thought it would be better if a non mediator writes  the 2 sentences. So, here’s the challenge – £100 voucher for the shop of your choice to the person who comes up with the best two sentence description of mediation. Closing date – 31st August 2014.

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.

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.

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