Research reveals high satisfaction with collaborative law

An interdisciplinary research project looking at how people accessed help in family disputes has just published preliminary findings from a national survey into the three major forms of out of court family dispute resolution which are Mediation, negotiation between Solicitors and Collaborative Law.

The three year study commenced in July 2011 and is funded by the Economic and Social Research Panel.

Client at a deskGenerally Mediation was recognised as the most common way of dealing with matters outside of Court but there was also higher than expected recognition and experience of Collaborative Law, which has only really been available in Britain since 2006.  Collaborative Law also achieved the highest level of satisfaction amongst the participants to the questionnaire.  There were some problems expressed with Mediation, some clients feeling dissatisfied as they felt intimidated and unprotected by the Mediator.  There is often insufficient time spent explaining the difference between Mediation and the Collaborative process.  They may sound similar but in practice are very different, particularly if you feel vulnerable or anxious and need the support of a solicitor with you in negotiations.

In Mediation you are on your own with the Mediator and your partner or ex-partner.  That can be frightening or at least intimidating, certainly disconcerting. The Mediator does not intervene on your behalf, the Mediator is neutral.  However this can be a very cost effective way to negotiate settlements but equally it can be intimidating.

With Collaborative Law you have your lawyer with you who supports you but also in the collaborative process, both lawyers are trying to reach a settlement and it is all carried out in a very open and transparent way with all parties present.  There is little opportunity for either intimidation or for one party to become aggressive or intimidating or to be difficult about seeking compromise.

The survey found that people going through divorce found Mediation very hard emotionally as a process – but Mediation is designed to be in parallel with using a solicitor who should support you through the process.  Very often though, of course, cost means that people are reluctant to spend time with both Lawyer and Mediator.

A significant finding of the research was that of the divorce/separated post 1996 sub-sample, women who were offered Mediation were less likely to take it up (49%) then men (71%).  Although of those who did take it up, women were more likely to be neutral about the process (40%) whilst men were significantly more likely to be dissatisfied (55%).

For more information about the project see Mapping the Paths of Family Justice

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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Mediation explained

From 6 April 2011 the Ministry of Justice proposed that before anyone made an application to the court in relevant family proceedings (and this is not divorce – relevant means an application in relation to money matters or children issues), the person making the application should contact a mediator.

Nicky GoughMediators must be authorised to carry out the mediation information and assessment meetings (MIAMs).  The applicant attends an information meeting at which the mediator will give advice about all forms of alternate dispute resolution.  This could involve mediation, whereby both parties meet with a trained mediator to see if the three can make any progress with regard to agreeing what is to happen either in relation to financial matters or in relation to the children.  The mediator may also discuss a collaborative process, whereby each person going through the divorce or separation has a collaborative lawyer and the four meet round the table to work through what needs to be done either in relation to money, property e.t.c., or children or both.

Hopefully a form of mediation acceptable to all the parties can be agreed.  If not, to demonstrate compliance with the Ministry of Justice pre-action protocol, the applicant would need to provide a form FM1 with their application to the court.  This is generally completed by the mediator, but can be signed by the solicitor acting for the applicant.

So what does the initial meeting with the mediator consist of?  Generally the mediator will try and meet both parties, either separately or together, and explore with them the various options available.  Also whether mediation is suitable if there is a risk of either party being influenced by fear of violence or intimidation.  A mediator can also assess whether they qualify financially for Legal Aid for family mediation.

If the parties do qualify for Legal Aid then the mediator cannot charge for this initial MIAMs meeting.  If either party qualifies for Legal Aid and they both decide to proceed with mediation, they are given the option of an onward referral to a Legal Aid Mediation Service if that particular mediator does not offer Legal Aid mediation.  The parties can decide to stay with their mediator, or choose the collaborative option.

The role of the mediator is of course totally neutral.  Mediators do not give legal advice.  For that, in the collaborative process, you need a collaborative lawyer or a solicitor, whether or not collaboratively trained.

What will it cost?

At the moment it is approximately £80 per person for attending the MIAMs meeting, or £200 per session if the parties attend jointly.

If the parties decide to proceed to mediation the cost will, subject to any particular consideration, be approximately £180 per hour per couple, with additional charges for the production of documents, depending on the amount of work involved.  The fees can be shared between the parties on a 50/50 basis, or in any other way that they may agree.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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Is the divorce process unfair to men?

I make no apologies for revisiting this issue as it does seem to be a common concern.  There is a widespread perception that with the divorce process and any issue or argument over children, particularly if it is conducted through the courts, favours women.  Is this correct?

post_imageThe courts, when dealing with children, have as their primary concern the welfare of the children.  A fairly neutral position and certainly one that is supposedly child focused as opposed to looking after the interests of either parent.

Similarly, if the issue of finances is debated through the courts, then again the court would take a position that both parties to a divorce need to be adequately re-housed and that both parents have to have accommodation suitable for their children to visit.  So why is there this widespread perception that men do badly in divorce, or that the whole process is unfair and biased in some way against them?

It may be in some way related to the other statistic, which is that most divorces are commenced by women.  This may have something to do with the fact that women tend to want to do something about a situation that is unsatisfactory, whereas men are more prepared to put up with a degree of difficulty, provided house, home, pension, finances, remain intact – when these are all disturbed they take it rather badly.

Many men feel that they have worked all their lives to achieve a certain standard of living, and with that, an adequate or even good pension provision.  Obviously a divorce means that the family home may well have to be sold and the sale proceeds distributed, therefore both are in a smaller house, and the highly prized pension pot is also split.  If you are not the instigator of the divorce, you may feel very badly indeed when all these things happen to you, seemingly through no fault of your own – and if your wife is in a new relationship then the pill is even more bitter.

However, if you can step back from the situation, the courts really do try to be even-handed and if you avoid the courts altogether, so much the better.  By using mediation and a collaborative approach to divorce, the focus is on how both parents are going to manage their separation to avoid any damage to the children and to ensure as far as possible, that everyone continues to have a similar lifestyle afterwards.  It cannot be avoided that both parties will be worse off financially as a result of the divorce, but through mediation, there is the real prospect that both parties will feel they’ve had a fair and workable outcome.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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Are Mediation or Collaboration possible when you’re going through a divorce?

If people are separating or divorcing after many years together, particularly when there are children involved, then obviously there are emotions that may inhibit a calm and rational approach.  But surely it is better to try, rather than straight away decide to use the court which is an adversarial approach that merely polarizes the parties, is extremely stressful and costs an awful lot of money.  These must be reasons to look at collaboration more seriously.

So how does collaboration differ from mediation?

weighing scalesMediation involves the two parties going to a professional mediator who doesn’t necessarily need to be legally qualified.  The idea is that they explore ways of reaching a settlement through that one mediator.  The parties have to go back to their lawyers to convert the results of mediation into a settlement within the legal parameters of the divorce proceedings.

With the collaborative process there are two lawyers, both working towards achieving a satisfactory settlement, albeit one that is necessarily based on compromise.  It is often said that the best solution is one that neither party is terribly happy with, but is prepared to accept.   Generally speaking there are no winners in a divorce – what should be happening is every effort is made to limit the damage.  That is not only financial damage, but emotional damage to the parties and above all the children.

Obviously one of the main reasons for doing things collaboratively is to preserve a relationship between the parties for the sake of the children and to enable the parties to focus on the needs and interests of the children as well as their own emotional and financial needs.

Within the collaborative and mediation process both parents acknowledge their role in caring for the children and that this role will continue despite their separation, so every effort needs to be made by both parents to ensure that the children maintain a good relationship with both parents.

Surely everyone wants both parents, separated or not, to attend the family occasions – christenings, graduations, weddings e.t.c. without any lingering animosity as a result of separation or divorce.  At Cotswold Family Law we offer a variety of ways of resolving difficulties without necessarily going to court.  It may be that we bring the parties’ company accountant or an independent financial advisor or a family therapist into the meetings to help the parties deal with all aspects of their separation, whether it be the impact on their business or the effect of the separation on the children and how best to deal with this.  Every effort is made to ensure that the parties separate on the best possible basis.

Collaboration or mediation makes sense – emotionally, financially and practically.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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What is a marriage?

IMG_9769webI am writing this following the recent debate about same-sex marriage – should it be allowed, should it go ahead, what do religious institutions feel about it.

But what does the Law say about it?

This encouraged me to look at the whole issue of void and voidable marriages.

A marriage is void if it is made, for instance, with prohibited degrees of relationship (for example fathers and daughters, brothers and sisters e.t.c. or if either party is under 16).  There are also voidable marriages.  A void marriage is void from the beginning and so is treated by both parties as never having taken place, therefore you do not need a Decree of Nullity.  A voidable marriage is valid unless and until a Decree of Nullity has been granted, so this has to be applied for and the voidableness proven.  A marriage is voidable if it has not been consummated or if either party did not validly consent (for instance with a forcibly arranged marriage) and also, interestingly, if at the time of the marriage, the Respondent was pregnant by someone other than the Petitioner.  I do not very often come across void or voidable marriages.

But if you have a same-sex marriage I wonder how they get round some of these issues.  What does consummated mean for instance?  The Law can be so pedantic at times that it is going to have to sort out some of these issues for same-sex marriages to become lawful, never mind the issue of whether they are culturally acceptable.

From a legal point again, there is not a lot of difference between a marriage and civil partnership so legally we have already accepted the concept of same-sex marriages.  Maybe, for once, the Law is ahead of society?

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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What is Mediation?

mediationThis might be a strange question as everyone assumes they know what mediation is.   But when you also have collaboration, arbitration and compromise, what exactly is mediation and how does it differ from the other approaches to problem-solving?

With mediation there is generally one mediator with two people who have, for whatever reason, not been able to resolve the difficulties between them.  There may be some conflict; if there is a relationship breakdown there is generally a degree of hurt, anger, sadness and other emotions, all of which can make it difficult to resolve issues.  But the point is to deal with differences, not in a destructive adversarial way, but with a more rational, positive approach to problem-solving.  You are not going to eliminate conflict but rather transform it and separate those involved and their emotions from the particular problems.

The issues or problems can be:  how are the couple going to separate, where are they going to live, how are they going to manage the children?  There will need to be some degree of co-parenting but how will this work out in practise?  A rational approach does not mean leaving aside personal feelings but to try and concentrate on what the problems are, not the emotional aspects of the relationship.

If you are separating it must be better to work towards your own solutions rather than having a decision dictated by someone else.  So often you hear talk about “going to Court” as if it is some sort of panacea that will automatically solve all the problems.  It might produce a decision but whether it is the right decision is a moot point.  It is not the decision the parties may have chosen for themselves and it is sometimes not one that may have thoroughly considered the practicalities of its implementation.  The best solution for a couple going through a divorce or separation is one they have created rather than the one that is imposed.

It may be difficult not to take up positions and feel that any sort of compromise is giving in.  But the more people position themselves, the more committed they become to that position, defending it against attack and so becoming concerned about saving face rather than reaching an agreement.  The more attention that is paid to positions, the less attention is devoted to meeting the underlying concerns of both parties.  A mediator can help move from positions to focusing on what the parties really want, looking at interests rather than positions.

Mediation is not a question of one party imposing their view, as any settlement achieved by hard bargaining may resort in short-term gain but often the result is damaging to the relationship.  The whole point of working through issues either through mediation or the collaborative process is to preserve some sort of relationship between the parties.  Although parents might be separating, it remains essential for their children that they maintain the ability to communicate.

People often come to mediation realising that the stakes are high and feeling threatened, fearful or anxious.  Emotions in one party will generate emotions in the other – fear and anger may take over.  It is important to recognise, understand and acknowledge emotions, many of which are driven by concerns.  Attending to those concerns can possibly deal with the emotions and so create a more positive climate for problem-solving.  Emotions are legitimate but they should not necessarily take over and determine outcomes.

With the lack of legal aid now available to fund most Family Court actions and with the cost of arguing through Lawyers and the Courts rising, it makes sense to look for alternative ways to problem-solve.  Mediation and the collaborative approach in divorce not only are a means of problem-solving, without the bitterness that can ensue with Court battles, but also far more cost effective.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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