Tag Archives: Services

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.

 

shutterstock_66786538b

 

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.

Gold Standard for Family Mediators

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

blog1
Our trainees work hard under close supervision with very experienced mediators and this training takes one to two years of intensive work. We have two professional Practice Consultants in our team to help with this training. This year we have got two mediators through their competence portfolio, Geraldine and Joanna. They have been duly crowned and handed their magic wands (essential equipment for every mediator) as well as being supplied with a large amount of ‘Emergency Chocolate’ to help them through those extra stressful and difficult cases. Well done Geraldine and Jo!

Setting out the Finances

3 Easy steps to setting out the finances

  1. Honesty
  2. Form E
  3. Summary

If you are separating or divorcing, you will want to understand the legal framework relevant to your situation, but one cannot advise you until it is clear what assets there are.  So, any process to resolve a financial settlement on divorce starts with identifying then valuing the assets. You must supply information and paperwork showing the value of all the assets, the house, the savings, the debts and the value of the pensions and your income.   This is called ‘disclosure’ and the law says this has to be ‘full and frank.’

If you seek legal advice first, your lawyers will often complete disclosure for you – two of them preparing it for each of you then exchanging it and asking questions about anything unclear. If you mediate disclosure, then the mediator does the disclosure with you both together – this is quicker and costs less and again questions can be asked and answered.
The mediator can draft a summary of your financial information so you can take legal advice on options.

shutterstock_142814494

Honesty

It is not an option to decide an asset is out of it and does not need to be valued; no one can proceed on that basis.  Any agreement needs to be binding.  That either means a Separation Agreement or a Court Order in a divorce.  For these to be binding there has to have been full disclosure and, at Court a Judge has to have a Statement of Information with a complete summary of all the assets and what they are worth, nothing can be omitted, or the agreement could be overturned.

Form E

At Focus Mediation we will work with you so that your Form E (the form that your solicitors and the court would want to see) is complete. We go through the process of disclosure and produce figures to work from. This can be done by two solicitors over a few months (court proceedings take over a year), but in mediation you can each see and hear and understand the financial position at the same time and the mediator helps you with suggestions and information.

Open Financial Summary

The mediator as part of the mediation process will prepare a summary of your background, your family assets and income, which can be used as the foundation for your binding agreement. If you seek legal advice you can show this to your solicitor and ask for a realistic assessment of the likely range of possibilities at court. If you both do this and bring your advice to mediation, there should be an overlap where you can compromise. Your Focus mediator will help you both to focus on realistic, affordable and practical options, so that you can reach an acceptable outcome which meets your and the children’s needs for the future.

What do you tell your children when your relationship ends?

Dealing with your own emotions at the end of a relationship can be tough enough but how do you help your children through the pain and upheaval of separation?

Are you and your partner able to sit down together and talk to your children about what’s going to happen? Do you know what’s going to happen? Would one of you rather talk to your children alone? What will you say to them? Can you and your partner agree what you will say?

There are no sections on the court forms for this type of discussion and yes, these issues can be tough to talk about. So tough, both of you may decide to engage solicitors to do the talking for you.

How will that work in the long term? You might find that you have spent your children’s university fund by the time you realise that any level of communication you and your partner did manage is now virtually extinct.

You will always be your children’s parents. Don’t you owe it to them to find a way to talk about the important issues as parents and to decide together as parents what you want for your children?

 shutterstock_74106811

At Focus we can help you both talk through these difficult issues – and in many cases if you and your children want, we can also 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.

You may never be friends in the future, but whilst your children are growing up and need you both, we can help you to put a workable arrangement in place that will keep you talking through the pain of the separation and into the future.
For your children’s sake.

Contents, Totems and Ginger Jars

“It’s Mine!”

Dawn: “Couples often have difficulty agreeing who has what of the contents of the house.  Yet lawyers and the Courts will very rarely want to get involved in the division of contents, simply because the cost of arguing over such things often exceeds the value of the contents by a very considerable margin.

Mary: “One solution might be to go round the house with coloured stickers taking it in turns to choose, with a friend to help you – and a glass of wine! This debate can cause huge bad feeling. There’s no special “right answer”, just what people work out that they can live with.”

Dawn: “When couples can’t agree the division on contents, if pushed, a Judge may order the sale of everything, or that they bid for what they want. Why do some people struggle so much with this?”

Mary: “Many reasons. They have exhausted compromise or they’re afraid of the waiting void, the silence.  After years in a conflicted relationship, people may struggle to leave that conflict. Also, often they simply can’t bear to feel they might lose the last argument!”

Dawn: “So … they could sort it out, but unconsciously they don’t or can’t you mean?”

Mary: “Yes, but the conflict has to go somewhere and attaches to things of which the worst may be totems or ginger jars (a.k.a “this is our ditch it and we will die in it”)

 Totem Pole

Dawn: “You must explain that!”

Mary: “Totems or ginger jars are often a symptom of subconscious, deep psychological or emotional aspects of a relationship.  A totem is often some legal principle like the “clean break” on spousal maintenance or inherited property, but couples can get completely hung up on those issues.  There are accustomed ways of dealing with them and it is best not to resist the conventions, but none of that matters to them – they are implacable! A ginger jar often has no value and no legal or practical significance at all, but it becomes infused with immense importance – granny’s old photos or the children’s Monopoly.  When people look back it won’t matter, but it matters immensely at the time.”

Dawn: “I know what you mean – people can be totally adamant about something relatively unimportant and the fact that there may be accepted ways of dealing with it just don’t matter to them.  Nor do they care they’ll spend more arguing over the principle than it is worth. People may cling to their ginger jar until the death.”

Mary: “OK – but some people need a ginger jar, it’s the last argument no one can lose! I tell people in advance if I think there’ll be something they can’t agree – then when we get to arguing over the food mixer, after everything else is sorted, they may even see the funny side and that is a good result!

Mediation and the Law – a big change is happening

When businesses and families have serious rows everything can seem insoluble and legal action may follow.  However, emotions and old grudges may cause a dispute that has nothing to do with the apparent “legal problem” everyone thinks they are arguing about. For example, I mediated a dispute between a spouse and the siblings of an elderly patient with dementia, about who should spend what time with the patient and control his care and welfare decisions. The spouse was distraught and felt threatened at the demands of the sibling group, who had little trust in her.  This was resolved in one day after nearly a year’s legal wrangling, court proceedings and after legal costs of over £30,000 had been spent.  This was not about legal niceties – there was no dispute about money or the law.  It was about grief, loss and the human tendency to displace impossible grief into something controllable, like a big row over something.

The only option for lawyers is to sift the evidence and translate it into a legal narrative – that is their role.  The difficult relationship between people, their struggle with each other, their relationships – that is often the real problem.  A trial or solicitors’ letters can be like amputating a leg, because someone has an infection. It’s as much use.

shutterstock_161359034

So imagine a huge row – about a will, a sick relative, a business – or a commercial dispute between people who work together, or about a contract – wherever there are people – there will be disagreements.  It is human nature.  Each participant comes at it with their own interpretation of the “truth” with their own beliefs, which tend to be re-enforced through debate, as people don’t want to back down. The conventional, legal ritual inflames the conflict drivers of the dispute, so it escalates.  The Law concerns itself with the evidence and legal issues – but those are often not what matters to people. Mediation reaches the conflict drivers, the beliefs and misunderstandings that fuel disputes. Mediation is far more likely to resolve the argument, as it deals with a far wider range of issues than the law can.

Given the success of mediation at sorting out disputes, it is a wonder it isn’t a first choice for anyone with a possible court application, but it hasn’t been so far. This is because the allure of court is that the judge will agree with you and the other person will be found to be “wrong” or “at fault” People want to be found to be “right”, it is much more appealing than a settlement. The problem is, usually both parties think they are right and the law of averages says half must be wrong!

The court costs are huge, they frequently dwarf the financial value of the issue being mediated – then everyone loses out.  The court timescale is long, but by the time the proceedings are under way, it can feel there’s no way out. However, since April the courts are increasingly directing people to mediation. The tide is turning in favour of fast and affordable, non-adjudicated resolution in mediation for all disputes, whether commercial or family. Our experienced specialist mediation team are proud to be mediation experts.

Save the Children

When couples separate, children are often caught in the cross-fire. When contact is stopped as a weapon, children can suffer too. If they are additionally saying different things to each parent, they feel the need to appease and comply and have learned what they feel and want doesn’t matter. This is not a good outcome for children.  Court applications are up between 27% to over double in some courts since this time last year. Meanwhile, family mediation – for which legal aid is still available – has fallen off a cliff. Why? It’s been shown again and again it produces better outcomes for children and families. The Court is getting us to mediate at Court with two other mediation services on the First Appointment of these Children Act Applications.  It would have been better and cheaper to mediate before proceedings are issued, as is required by the pre action protocol, which is being ignored.  Many of these cases are mediated successfully and then the whole Application was unnecessary, unless to bring a parent to mediation to talk it over.

Why Focus Mediation?

  • We are accredited experts, dedicated to mediation
  • We use experienced  lawyer mediators for financial cases
  • We have specialist mediators who can see your children so their wishes and feelings can inform your decision-making
  • We offer legal aid if you qualify financially

Most people just want to sort things out and we facilitate that, at a modest cost – which you share if you don’t get legal aid.

Business Disputes

Business Disputes

Disputes can paralyse a department or even the whole company, diverting decision-makers from the key tasks of doing deals, creating wealth. The cost in money and reputation can be incalculable.  A Focus Mediator can help restore equilibrium swiftly, confidentially and with the minimum of expense and disruption.  The key aim is to end the haemorrhaging of time and money as quickly and productively as possible.

Focus Gets Results

Mediation usually only takes a single day, and can be set up at short notice.  Where relationships have broken down and negotiations failed, a neutral mediator operating in a private, “without prejudice” environment aims to broker a deal that all parties agree is better for them than the fight.  Focus mediators achieve that in over 90% of cases, with parties signing binding settlement terms there and then.  The process even brings many of the rest close enough that they settle soon after.

shutterstock_66132007

Business Disputes and Litigation

Disputes often grow in complexity as the lawyers jockey for tactical advantage, and extra parties (such as insurers) may become involved.  Before you know it the legal costs can be one of the biggest issues!  Mediators start where you are. Only a mediator can discuss each party’s hopes, fears and objectives with them in confidence.  No judge, arbitrator, adjudicator or party representative can ever do that.  It’s one of the main reasons mediation gets results. And mediated solutions can be more creative and user friendly than awards imposed by the courts, arbitrators or tribunals.

Problems, Problems

Traditional methods of resolving disputes often drive parties further apart long before any resolution is possible.  If you’ve been through the stage of snarling at each other, and that didn’t bring the opposition to heel, where should you go next?  Since April 2013 litigation procedures have been reformed to encourage and incentivise parties to use ADR (Alternative Dispute Resolution) including mediation. Failure to do so can have adverse costs consequences, even for parties who go on to win their case.  Proposing mediation, far from being a sign of weakness, can put your opponent on the back foot.

How does a business mediation work?

We will help you choose the right mediator from our panel and a day is set aside for the mediation. A fixed fee is paid up front, usually by the parties equally. Pre-session process is kept to a minimum – usually just a short position statement from each party, to ensure the mediator understands the background.  The mediation day usually starts with an opportunity to explain your case in a group session, all together. Most of the day is spent in separate rooms with the mediator shuttling between you. You say what you want relayed, and what is to be held confidentially by the mediator. This process helps the mediator see areas where agreement may become possible.  The objective is a binding settlement, signed on the day.

Usually your mediation can be held within two weeks of your contacting us

Christmas Tips from a Mediator

Families argue at Christmas. I put this down to Too Much or Too Little.  Too much time together. Too much to eat and drink, too much expectation and disappointment, but mostly too much said, after too little thought.

You could mediate Christmas; I think you’d find it makes a difference.

Lucy “I hate roast potatoes!”
You “OK, you don’t like roast potatoes, would you like parsnips?” (Active listening and summarising, Lucy feels heard, another option offered).

John “My family haven’t wanted me at Christmas for years . . .”
You “It must feel really hard not to see your family at Christmas” (acknowledging and summarising) but they do live a long way away and we’d miss you. . “(re-frame the reason, it’s not lack of love it’s distance and he has good friends.  Challenge the script).

Focus Pictures Xmas team black background Dec 2013

Usually someone plays Christmas Martyr; people compete for this role, especially in the kitchen. You have a choice – compete or let them get on with it and take the dog for a walk, get very drunk, retire to bed sick or become deaf. The script assigned to you is usually callous selfishness. Nothing appeases the martyr, because it’s their favourite role and they won’t give it up.  Play the game, admire their self sacrifice and hard work, they will love it and you will have peace.

If all else fails, call us after the Christmas shut-down and we’ll try to help, our number is 01908 410509. We may have been working hard over Christmas – but then so may you…

Workplace Mediation

Conflict at work is inevitable in a thriving innovative environment. For example, competition between teams or individuals may bring out the best in people, particularly if there is a prize or reward for the most successful. A state of ‘Healthy’ competition is good for the workplace and has a number of benefits such as, attracting the best candidates for advertised roles, retention of staff and increased productivity.

Business People In Meeting

Conversely, conflict that develops into something ‘personal’ between two or more persons may have a disproportionate affect on the way others perform their roles. Unresolved conflict may lead to a decrease in productivity, difficulties in recruiting the right staff and increased absenteeism through sickness, particularly stress related conditions.

People may react to workplace conflict in a number of ways.

Fight – we’ve probably all seen a verbal argument at work, sometimes it provides the cure to the dispute, or it may lead to more deeply entrenched positions with other workers being expected to ‘take sides’ and demonstrate allegiance by a lack of co-operation or communication with the ‘other side’.

Flight – some individuals will turn their back on what’s going on in the hope that the problem will just go away.

Freeze – someone unsure as to how they should deal with the situation may become passive, efforts to deal with the situation may be ‘half hearted’ through a lack of conviction or confidence and the issue never gets resolved.
Workplace conflict can be resolved by;

Having a quiet word, an informal approach can often solve the problem; it may be that the persons concerned were unaware of the impact of their behaviour on the rest of the workforce.

Informal investigation, speaking to those involved in or affected by the dispute, and taking appropriate action may provide a solution.

Internal processes, grievance procedures or a formal investigation may be necessary; the downside of formal procedures is that there is often somebody found to be at fault. This process creates a winner and loser and may lead to resentment, withdrawal or further attempts to get back at the organisation or another individual involved.

Training for line managers around topics such as, ‘Managing difficult conversations’ could lead to conflict being identified, and dealt with, at an early stage rather than when positions have become entrenched.

Focus Mediator – An accredited impartial mediator facilitates communication between people in dispute to improve their future working relationship and restore their productivity.  Workplace mediators accept that personal differences may continue, but the mediator helps the parties to find their own solution to their dispute or problem, so that they can work together effectively.

%d bloggers like this: