A Family Disputing a Will – Could Mediation Have Helped?

Glass and notepadA judgement has recently been given by the Supreme Court in a case which involved a family disputing the Wills of their parents.  The case of Marley and Rawlings had been to the High Court and, just recently, the Supreme Court – so it obviously cost the family a considerable amount of money in legal fees.

Lord Neuberger gave judgement in the Supreme Court and said that the Wills of Maureen and Alfred Rawlings should not be invalidated simply because they had each incorrectly signed the other’s Will – he stated that it was obvious what the intention was meant to be and this should be effected.  Both Maureen and Alfred had left the entire estate to Terry Michael Marley who was not a blood relation.  The mistake came to light after Alfred Rawlings’ death and his two sons argued that their father’s Will was invalid because it had been signed by the wrong person (Maureen).  That meant his estate passed to them as the nearest relatives.

The case was first heard in 2012 in the High Court which had said that although the intention was obvious, the court did not have the power to rectify the Will, even though there was no doubt that the Rawlings had wanted Marley to inherit.  This meant that everything was to be passed to the sons.  This was completely changed by the recent judgement of the Supreme Court on the 22nd of January.  It stated that “whether the document in question is a commercial contract or a Will, the aim is to identify the intention of the party or parties to the document” and ensure that the intention was carried out.

In other words, what the Rawlings had wanted in their Wills still stood, despite the mix up over the signature.

The other point is, as I pointed out at the outset, that potentially hundreds of thousands of pounds have been spent by all the parties arguing over this – money which is now lost to the family.  It might have been a better idea to consider mediation and see if a compromise settlement could be reached without the huge sums being paid to lawyers.  An interesting point of law has been established but at a fairly considerable final financial cost to this particular family.

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

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How realistic is shared care of the children?

3 children runningEven in families with a stay-at-home mother or father, generally speaking most parents share the care of their children in some way or other.  When parents separate they expect to be able to continue shared care of the children but, obviously, whatever arrangements need to be made can be difficult to envisage before the parties actually separate.  What does shared care look like?  Is it one week with one parent, one week with the other?  This might be “fair” in terms of equalising the time spent with both parents but is it right for children to be continually moving from one house to the next?  Do they not need a base – but with whom?

According to research carried out by Oxford University only 3% of separated families in the UK are currently in a shared care arrangement.  In Australia the concept of “equal shared parental responsibility” except where there is violence or abuse has been enshrined in law since 2006.  This means that of cases coming before the Court, 30% are being forced into a shared care arrangement.  So those parents whose relationship is not good – because they have had to resort to the Court to decide how to care for their children – are the very parents who are forced into a shared care arrangement and are therefore having to have constant communication with each other.

The best interests of children after parental separation is not dependant upon the amount of time which they spend with each parent but more with the quality of parenting received, the quality of the relationship between their parents, the practical resources available including income and housing – and definitely not to any particular pattern of care or amount of time.

Perhaps in an effort to be fair to parents there is a danger of being unfair to children?

Frequent moves between households can, for children, bring practical and emotional difficulties in terms of the constant packing and planning.  But, obviously, the level of difficulty depends on the distance between moves, the frequency of moves, the level of any conflict between the parents and also the child’s personality and preferences.  So each case must depend not just on practical arrangements for the child but what their personality and the effect of a shared arrangement would be on them.  How is the voice of the child heard?  Is it heard at all?

The Courts are currently directed to look at the best needs of the child or children – the welfare of these children should be paramount.  Is it actually possible to achieve both “fairness” to act in the best interests of the child?

Rather than arguing through the Courts and becoming more and more polarised, parents should try and work together to ensure that everyone’s needs – theirs and the children’s – are met, and family therapy may be more appropriate than litigation.  Parents have a responsibility to ensure the long-term wellbeing of their children.

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

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Mediation or litigation?

What is Mediation | Advice from Cotswold MediationIt is the New Year, and according to media reports, a time when many people face the reality of separation and most will at least start out in the hope that whatever needs to be done can be dealt with as painlessly and economically as possible.  It should therefore be the case, when choosing between mediation or litigation, that mediation is the preferred option.  It might come as some surprise then that the figures speak very differently.

Most couples who separate or divorce do not in fact seek the mediation route.  They may well go to a solicitor who suggests or even recommends mediation but for one reason or another they end up litigating, arguing through the courts rather than engaging in far more constructive round table discussions.  Why is this?

Well actually, although mediation may seem the most sensible and rational option, when you fall out of love and when you separate, rational thinking often gets lost in the heat of the moment.  There may be bitter recriminations, painful memories, resentment, anger, despair, sadness.  All these emotions can persuade people that using the courts, “having their say”, having their day in court, putting their case as forcefully as possible, possibly even proving that they are right in some way is worth the agony and expense of litigation.  I disagree!  It is hardly ever worth it.

In mediation you are on your own with the mediator, there is no one there to help, defend or speak for you.  The onus is on you and perhaps people find it difficult to behave well with the person they once loved who is now very much on the opposite side of the fence.  People may want the support, advice and encouragement of their lawyer and may feel justified in putting forward their case to possibly get more of the assets or more time with the children.  But obviously there is only so much to be divided and if money is spent on court proceedings then there is less for the parties.

For whatever reason, it can be difficult for people to choose mediation which is why the take-up has been surprisingly low but perhaps this year’s New Year’s Resolution should be mediation and not litigation for separating couples.  

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

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Protecting children during separation

 

Children playingGenerally, when parents separate, one of the most difficult aspects for them both is how to tell the children and how to make their separation as painless as possible for their children.

There is obviously no good time for telling bad news and no ideal way of doing it.  It is going to vary tremendously according to the ages of the children and circumstances of the separation but equally, obviously, if the parents can be seen to be working together to ensure the best possible outcome for their children, that will help their children enormously.

Most children will know long before they are told that there have been issues between the parents. Maybe there have been arguments or just a feeling of unease and lack of communication.  Most children, too, would prefer the arguments and unpleasantness to end and it may well be that if the parents are happier apart then so will the children.  The important thing to avoid is giving the children the impression that they have to take sides.  They want to be able to love both parents and both parents must allow them to love and have a good relationship with the other.

As parents, we must try not to let our children see us upset when they go to the “other” parent.  They may feel guilty about spending time with one or other parent, if the other is left at home alone and sad.

Most parents manage to work out some sort of practical arrangement so the children see both parents, the children know when they are to be at one or the other’s house and in time a new pattern and new relationships develop.

As Susan Trussel, The Banbury Therapy, said in a recent article, the most important thing is that the children know they are loved by both parents and they don’t have to choose between them.  Working together will help to ensure the best possible outcome for your children and mediation is often a good place to start that process.

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

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Is getting divorced expensive?

Getting Divorced: Know your options | Help and Advice from Cotswold MediationMost people would answer a straight “yes” with the implication that the process is often out of their control:  costs escalate, emotions get in the way of rational decisions and discussions, and the lawyers end up the only beneficiaries.

However, the cost of the divorce process is actually very much in your hands – you can decide how much or how little you use your lawyer.  The more you do and the less your lawyer does will reduce your legal costs.  Law is a service you pay for like servicing your car – you do it or you get a garage to do it.

Also, of course, the more you argue, the more it is going to cost and that cost is met out of joint assets so there are less resources for everyone.

There is, obviously, the practical cost of getting divorced.  In most cases both parties will be financially worse off as a result of a divorce because they have to live in two separate households – obviously more expensive than living in one.  A house may need to be sold and smaller ones purchased, a pension may need to be divided, other family assets – whether savings or photographs or pets – have in some way to be divided and these often involve painful and costly decisions.

However, not only can you reduce the cost by using mediation, whereby you both employ one person rather than both employing a separate lawyer, but you can also reduce the cost by only using your lawyer for part of the process rather than all of the process.

You might decide to come for some initial advice and then actually make an application for a divorce or a financial decision yourself.  Or you may see a lawyer and then go to mediation and then go back to the lawyer for legal advice pertinent to your situation.  You decide how much or how little you use a lawyer and you pay accordingly.

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

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Values in family matters

Values in family matters can mean those such as honour, dignity, trust etc and values as in terms of how much the property and other assets are worth.

Very often valuations are difficult to agree because of the breakdown in trust and communication that it is an inevitable part of divorce.  It may also be caused by the fact that if there is not quite enough money to enable both parties to rehouse themselves or start again in a satisfactory way, then the value of the assets become critical and therefore hard to agree.

Values in family mattersIf for instance the wife wants to stay in the family home she may have to pay something to the husband to enable him to move on – how much she pays depends on the “value” of the property.  But in reality it may depend on how much she can afford and how much she wants to stay in that house.  It may also depend on how much the husband needs together with his earning and mortgage capacity to enable him to buy a suitable or similar property.

Even more problematic are business valuations.  Very often only one of the parties will have been involved in the business and the other party may have an over inflated idea of what the business is worth.  Just because the business has in the past generated a good income for the family it does not mean that either the business will continue to generate that income or that it is worth for instance three times the profit.  These valuations are unrealistic.  What a business is worth is what anybody is prepared to pay for it and they will weigh up the risk of taking on a new venture with or without the current proprietor and so a business valuation can be very problematic.

This difficulty can be very expensive for the parties.  It can be the source of endless litigation which as everybody knows is very expensive, as well as emotionally damaging for all concerned, trying to establish exactly what the business is worth.  One party will argue that it is worth a lot more than the other – but neither really knows.  There is a strong argument for calling in experts early on.  They can help, although they also cost money, in determining the value of key assets – the family home, a pension if it is of significant value and the business.  If figures are agreed this makes negotiation much easier.  Even if the figures are not particularly palatable to either or both parties, they are at least fixed and enable negotiations to take place.

Although valuations may be expensive when money is tight – as it always is when people are separating – it may actually be cost effective to get an early and professional valuation of key assets.

Pensions have what is known as a cash equivalent transfer value but any independent financial advisor will tell you that this does not necessarily mean what it says, there are some pensions which carry significant benefits within them which mean that the face value, the CETV is actually a significant under value.  So again worth getting an expert opinion early on.

Sentiments I would also echo in relation to advice in relation to divorce and mediation too.

Expert valuations can provide clarity, not just in terms of actual price but also in explaining complex financial information or providing a professional judgement on the value of a key financial asset – particularly important if one asset, whether it be business or pension, forms a significant proportion of the couple’s total assets.

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

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Lack of trust

 

I recently heard Evan Davies on the Radio talking about trust in the business context and how recent research suggests that businesses actually run better from the bottom up rather than the top down.  What that means in practise is that responsibility has to be delegated, employees need to be given the trust, the resources, the authority to implement policies and procedures, the more you trust people the more they respond positively.

Couple in talksOne example used was customer service.  It is key to any business, you must deal with your customers well to keep them coming back but you cannot write a manual on how to do customer service, it has to be innate, it has to be genuine and it has to come from the desire to do your best for the customer.  People generally will naturally try to please if they are in an environment that encourages them to make decisions.  So trust is good for business, is good for employees, good for profits and is good for customers.

Trust is something that is often very lacking in family disputes, trust is after all the very thing that may have been destroyed when a relationship breaks down.  Lack of trust then leads to an escalation of misunderstanding.  One party might genuinely want to do something that they think will benefit both parties but the other is so suspicious that they will not agree and/or assume an ulterior motive which means that agreements are hard to reach, negotiations breakdown and parties head inevitably to Court.  Court further damages relationships and costs an inordinate amount of money and ends up satisfying no one.

So how to deal with the lack of trust.

I feel that any kind of face to face encounter, however difficult is actually an important step in dealing with lack of trust.  It is far more difficult to misunderstand or deceive face to face.  Both parties can see that the other is finding the situation difficult, which can be reassuring.  Often one party thinks that the other does not feel any pain or is not going through any emotional or financial difficulties.  This is rarely the case, both parties find divorce/separation difficult; but it is a joint problem which needs a joint approach.   The sooner the parties can begin to work together despite what may have happened between them, despite the lack of trust, the better it will be both financially and in the long term emotionally.

Mediation is a relatively cost effective way for the parties to meet face to face and discuss in the way they want to, how to deal with their particular situation and with the help of the Mediator to try and work out the arrangements that can best suit all the family members as far as possible.  There is rarely an ideal solution but somehow parties need to work through any potential lack of trust to come to a mutually beneficial arrangement.

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

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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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When is a marriage not a marriage?

4 children playingVery often you hear people say “well, they’ve been together for years and they have children so the partner must have acquired an interest in the property” or you hear the term “common law marriage” and the implication that this must mean something.  Well it doesn’t – there is no such thing as common law marriage.  You are either married or not married.  If you are not married then you do not acquire an interest in anything belonging to the other party, however long you may have lived together, unless you actually take the trouble to put the house and any other assets into joint names.  So, if a couple have lived together for years and have several children, but the house is in the sole name of the man, then the woman has absolutely no claim in relation to the house – even if she has paid the mortgage and/or brought up the children.  The only claim would be on behalf of those children under Schedule 2 of the Children Act.  This would be a claim made for support while the children remain dependent, generally up until the age of 18 or while they are in full-time secondary education.  Any capital or housing provision made for those children ends when they reach the age of 18 and the capital would go back to their father.

So just a very small message, which I don’t seem to be able to repeat often enough – the mere fact of cohabitation does not convey any rights, however long you may have lived together and whether or not you have any children.

This also means that unless you make a Will leaving your assets to the partner, then if you are not married your partner will not receive anything – if you die without a Will then your estate passes under the Rules of Intestacy to your nearest relative, not your partner unless you are married.  So being married makes a difference.  Take it seriously!

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

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Managing Christmas as a divorced or separated parent

Although it is only November, as soon as the clocks go back it seems that everyone is trying to get us to focus on Christmas.  Christmas can be a great family time of year, an excuse to take some time to visit friends and family, but equally it can be a dreadful time of financial and emotional stress which can, for some families, be the final straw.  Or it can just be average:  most peoples’ Christmases are in fact just that – ok, nothing more nothing less.  But unfortunately the weeks of hype that lead up to Christmas encourage everyone to expect that Christmas should in some way be fantastic –  full of smiling parents and beautiful children, the perfect Granny and other relations in attendance, everyone with lavish and perfectly prepared food and great presents which everyone receives with beaming smiles.  Although we all know in reality it’s not like that, the marketing hype inevitably gets to us.

2 children at the windowSo, how can we manage Christmas better particularly if we do not happen to belong to the perfect family?  I think that what people are really short of, despite the recession meaning that people are also short of money, is time and that instead of spending hours shopping for loads of presents or even buying our children lots of things, we should actually propose a different sort of Christmas where spending time is more important than having presents.  Most adults have far too much stuff and I think that can be said of children too, although they might not so readily admit it.

The message must be that if parents can work together in relation to the arrangements for the children, whether together or separate, it is in their best interests.  Try and manage everybody’s expectations so you do not end up being disappointed about the lack of perfection which is an artificial creation anyway.  Reality might actually be better.

Some key points to focus on if you are separated: –

  • Agree which parent will have access to the children and when.
  • Allow the children to be able to fully relax and have a fun time with only one parent, without feeling disloyal or missing the other parent.
  • Avoid any competition between you about the provision of presents and stuff generally.  Is the parent with a better job or a new partner able to give the children a better time?  Don’t go there!
  • Think about how you deal with the fact that there may be sad memories of past Christmases when you were all together.

Of course Christmas is a difficult time of year for all families, particularly post separation.  Perhaps the following might help: –

  1. Perfect the essential art of enjoying the now – becoming a human being rather than a human doing.  Perfection is, as we have established, impossible so just enjoy what and who you have.
  2. Count to ten or take three deep breaths and relax before responding to a wind up from your nearest and dearest in whatever form  – text, or even Twitter, Facebook e.t.c.
  3. Try and make up your mind that you are going to have a good time this Christmas whatever the circumstances leading up to it and plan ahead.  Having a schedule in place for when the children will be with each partner if you are separated will ease their anxiety and help any transitions between parents.
  4. Try and let go and have fun!

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

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