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.
Read more...

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.
Read more...

Who cares for the children?

Whenever parties separate and there are children, then a decision has to be made as to whom the children are going to live with.  Do they stay mainly with one parent and have contact with the other or is there some sort of shared parenting arrangement whereby, as far as possible, the children spend equal time with both parents?  Is this a good idea?  Is it a good idea for the parents but not for the children?  How do families best manage the care of their children?  Who cares for the children? 2 children at the windowVery often both parents want to be fully involved with their children’s lives but face the practical difficulty that really the children can only live with one parent which means contact with the other can often be intermittent, alternate weekends and a few days during the week.  Is this enough to maintain proper contact and a good relationship with your child or children? Lots of fathers fear losing their children if they separate from the child’s mother.  But equally mothers too fear losing their children in some way.  Even if the children live mainly with the mother, there will be weekends when they will be with their father who may have a new partner and possibly even a new family.  Separation can cause pain all round. There has been a lobby suggesting that if the time the children spent with both parents was equal this would necessarily be the best in all cases.  This highlights the fact that this presumption actually risks subordinating a child’s best interest to the parents’ expectations of ‘equal’ rights.  It can be hard when parents separate to decide what is best for the children as opposed to what is the best for them, the parents.  Do children really want to spend half the time with one parent and half the time with the other with all the practical difficulties involved in changing from one house to another? Sometimes this can be the best arrangement, particularly if the parents live near to each other and get on well.  But if the parents do not get on well and cannot see each other without arguing then going constantly backwards and forwards creates a lot of tension. Obviously it is best if that tension can be avoided or dissipated altogether as both parents and children learn to move on and deal with their new situation. All that can be said really is that there should be no hard and fast ‘rule’.  It is not the case the children automatically stay with their mother:  it is the case that both mums and dads need to look at what is actually best for their children and most of all try and have a good relationship with each other, even though you have separated, to ensure that the time the children spend with both of you is good. For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.
Read more...

Mediating family fallouts after a death

It is not commonly realised that if you live with someone to whom you are not married, if you do not make a Will leaving your assets to them, then on your death they will not automatically receive anything from your estate. Flowers in window - CroppedFamily arrangements are now increasingly complex.  People may have married and divorced, remarried or lived with somebody and they may have had children with a number of different partners;  so it is often not clear as to who “their children” are.  What happens when people die without a Will or without making their intentions clear? If there is uncertainty, if it is not clear who is going to inherit, then families can, and often do, fall out.  Perhaps there is an unmarried partner - they will have a claim to part of the estate - obviously any children will also have a claim, and possibly children from a previous marriage will have a claim if they are still and young and dependant in any way.  What about a spouse or an ex-spouse? If the person who dies is living with someone to whom they are not married then that person may expect to inherit the house, but under the Rules of Intestacy it may pass to children or other relatives.  Houses are valuable assets and are worth arguing over.  All the family members have different and competing interests.  If they all instruct Lawyers to argue their case and there is a possibility that the matter will go to Court then tens of thousands of pounds can be spent and those very assets that are in dispute are used up paying legal fees! Ideally you should make a Will that sets out your intentions very clearly but if there is no Will or if there is still a dispute, then far better to consider mediation. Mediation is very relevant when there are family fallouts and disputes about Wills or what is to happen to assets on death, just as it is relevant when people separate.  It is equally important to try and resolve differences without going to the Court and for all sides to reach an agreement that they can be happy with.  Otherwise a lot of money can be spent going to Court where an arbitrary decision is made which may suit no one. Far better to mediate than to litigate. For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.
Read more...

Who looks after the children?

children walking through wheat fieldRecent statistics have revealed that not only in most families do both parents work, full or part time, but also more surprising the increasing number of families where the woman is the main breadwinner.  We should not be surprised though it should perhaps lead us to question some other perceptions about who is or should be looking after the children. When parents separate there is often a fear on the part of fathers that they will in some way “lose their children”, that if they go to Court the odds are stacked against them because the perception is that children always stay with their mothers. But Judges do actually live in the real world, they and all the Court staff are part of the working population where it is normal for both parents to be juggling work and childcare.  So when parents separate it is only logical that Courts will see that men and women may both work and both want to see their children.  We have plenty of female Judges who may have a stay at home partner looking after their children.  There really is no longer any automatic prejudice in favour of mothers except in the case of very small babies who may be physically dependant on their mother.  It still happens though that the person, often the mother, who has the major child caring role considers that contact is their gift to dispense with as they decide.  The Court's view is that what is most important is what is in the child’s best interests.  Not what either parent may want. If we focus on what is in the best interests of the children, it is of course that the parents should not go to Court, should not argue about childcare but should resolve their differences through negotiation and compromise.  This itself conveys valuable lessons to the children. Fathers are often very fearful about losing contact which can make them over aggressive, anxious that they will lose their children forever.  Perhaps if they were more reassured that the Court’s attitude is very much that children should spend time with both parents, a lot of the hostility could be avoided. Historically children were very much the man’s property and women had no rights at all on separation or divorce.  Then the approach was that children always stayed with their mother,  possibly we now have a more sensible view which looks at the practical realities of daily life, the needs of the children and the importance of avoiding conflict. For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.
Read more...

How do you negotiate with “difficult” people?

office-interiorI suspect no one considers themselves to be “difficult” so we are perhaps talking about people with strong opinions which they consider correct.  I would always advocate attempting negotiation or mediation rather than simply assuming an adversarial approach and heading to Court.  It always helps as a first step to actually take a step back and get some perspective on the situation.  It is easy to be so convinced of your own position that you do not look at the alternatives which might have some unforeseen benefits. As we all know, under stress even reasonable people can become angry, intractable and entrenched in their view.  Anger and hostility may also hide fear and mistrust, confusion and distress.  You need to deal with not only that person’s behaviour but your reaction to it which can easily perpetuate the very behaviour you would like to stop.  If you react angrily, negotiation may become impossible. The aim is to move from face-to-face confrontation to side-by-side problem solving - it is always worth a try.  Working together to seek solutions rather than having an angry confrontation which goes nowhere. “Speak when you are angry and you will make the best speech you will ever regret”. Ambrose Bierce Sometimes people may try to wind you up - if you succumb to anger you stop thinking clearly and by reacting you become part of the problem.  It is important not to react to provocation or try to provoke a reaction! Sometimes the most affective negotiation is accomplished by saying nothing. Sometimes emotional reactions indicate a need for recognition of pain or distress or hurt.  We all have a deep need for recognition, and satisfying that need can help create a climate for agreement.  Acknowledging the other’s point of view does not mean that you necessary agree with it.  It means that you accept it as one valid point of view amongst others, but it sends a conciliatory message.  Agree wherever you can.  It is possible to agree without conceding. Saying “Yes, you have a point there” or “Yes, I agree with you” always goes down well. As well as using yes a lot use “we” and try and find out what each party really wants as there may be more mutual ground than first thought.  It is important too that no one loses face and the other acknowledges that.  The bottom line is that it is better for people to negotiate an agreement, to engage in mediation or have discussions, to reach their own solution rather than getting into any sort of Court argument with a decision imposed by a third party. For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com. See also “Getting Past No” by William Ury.
Read more...

Changes in Family Law – a new dedicated Family Court

The Crime and Courts Act 2013 introduced the concept of a single Family Court, which will deal only with family matters.  This, it is anticipated, will be operational from April 2014.  The Family Court will deal with all family cases with the exception of two areas of law: those involving the jurisdiction of the High Court - i.e. serious and unusual matters such as Wardship - and International cases. Three children in woodsThe Family Court will include all levels of Judge and there will not be the transfer between Magistrates and County Court as there is at the moment which should enable cases to be heard quicker and in less time. As there are various levels of Judges it is important to ensure that each case is allocated to the correct level which is hoped will be achieved by a specific team when cases are submitted.  Court staff have been assured that there will be no Court closures or redundancies as a result of this single Family Court – we shall see! The big change after the reduction of the availability of Legal Aid in April is of course the number of people who are making applications in person rather than using a Solicitor or Barrister.  As they are often not aware of the procedure, cases can take longer and Judges are being given specific training on how to deal with litigants in person.   The new Family Court is presumably to make the whole process easier for everyone to use. Other key changes being introduced are: -
  1. Attendance at a MIAM (Mediation Information Assessment Meeting) will be a  prerequisite before making an application to the Court (unless there are specified exemptions such as domestic violence).  This is a meeting before a Mediator who gives both parties (not necessarily together) information about the options available to them and encourages Mediation rather than an application to the Court.
  2. There is to be a presumption that both parents should be involved in the life of the child and that this will be in the child’s best interests – unless of course there is an exception indicating one parent’s unsuitability.
  3. Contact and Residence Orders are to go - they will be replaced by “Child Arrangement Orders” specifying with whom a child is to live with, spend time with or otherwise have contact with, and when they are to do so.
The most important change is of course the introduction of a single Family Court which it is hoped and intended will speed up the hearing of children proceedings which should of course be in everyone’s interest. For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.
Read more...

Cycling from London to Edinburgh and back in four days

London Edinburgh Cycle 1As most of you know, I recently embarked on a cycling event for Oxfam (my Just Giving page is www.justgiving.com/nickysbike).  This was a cycling event which takes place once every four years.  It is run by Audax UK which is an International long distance cycling organisation and riders from all over the world participate.  Entry was limited to about 1000 riders and over 60% were from overseas  - Europe, Canada, Australia, America, Japan, New Zealand…. the riders from overseas were amazed by the scenery we have in this country particularly in Scotland.  The aim was to cycle from London to Edinburgh and back, a total distance of 1419km (provided you do not get lost!) within a set time.   London Edinburgh Cycle 2Riders were started off in groups of about 50 every fifteen minutes or so.  I left at 7.45am on Sunday morning which meant that I had to complete the event by 4am Friday morning.  In the end I arrived back in London at 10pm on Thursday evening having endured temperatures of over 30 degrees that day and a cross wind in the Fens which felt more like a hairdryer.  We all had a route sheet detailing our route and certain controls to check in at.  They were mainly schools that had been taken over to provide food, showers, somewhere to keep the bikes for an hour or two and mattresses to grab a few hours sleep.   London Edinburgh Cycle 3The first control was at St. Ives after 100km - the other controls were Kirton, Market Rasen, Pocklington, Thirsk, Barnard Castle, Brampton, Moffat then Edinburgh and then on the way back two small controls in the middle of nowhere, Traquair and Eskdalemur, and then back to Brampton, Barnard Castle, Thirsk, Pocklington, across the Humber Bridge again, Market Rasen, Kirton, St. Ives and London (Loughton).  Food was always available and riders would be coming and going at all times of the day and night.  I tended to cycle until about 11pm and then catch a few hours sleep, get up about 3am/4am and set off just before dawn.  This meant I had some tremendous rides in the Scottish Borders as the dawn rose over absolutely amazing countryside and then again climbing over Yad Moss, Pennines as the sun rose.  On the way up, unfortunately, I had cycled over Yad Moss in a hailstorm so had seen very little of the scenery.  As cyclists checked in at the controls we grabbed some food – this could be breakfast, lunch or any combination.  Quite often breakfast would consist of porridge, pasta and sponge pudding and custard at 4am in the morning!  You did need to eat quite a lot - on average I probably used about 6000 calories a day.   It was an amazing experience and the helpers at the controls were great, enthusiastic, helpful, encouraging and lively - all on 24 hour shifts.  At each control there was also a mechanic to carry out any necessary repairs.   London Edinburgh Cycle 5Fortunately nothing went wrong with my bike until I arrived back in London.  My gears had been playing up a little bit and when I looked the front gear cable had actually rusted through the metal and underneath the wires had frayed and split  - so I only just made it in time.  At one point I was cycling with a German lawyer who had brought with him a very high spec brand new bike with electric gear change which unfortunately failed just after Edinburgh - from then on he was stuck in one gear and in effect did the whole event on a fixed wheel bike.  But as he said, on a number of occasions, giving up was not an option!   London Edinburgh Cycle 6As well as normal bikes there was a whole array of cycling paraphernalia - velos which are the encased bikes which go really fast over 40mph on the flat, recumbents which also go really fast, tandems and fixed wheel bikes.   Fixed wheel mean that they have only one gear so cyclists often have to weave from side to side to get up hills and if there is no free wheel - they have to peddle downhill.  You can imagine what that is like if you are going really fast! And finally there was the onion seller - a guy dressed as a French onion seller - this time with vines rather than a string of onions (so a vineyard owner!) on a 1920s bike which only had two gears and to go uphill he needed to pedal backwards.  It takes all sorts.   London Edinburgh Cycle 7We were lucky with the weather and stunned by the scenery, encouraged by our companions and all in all had a terrific time  - I hope this goes some way to explaining why I actually enjoyed cycling 1400km in four days.
Read more...