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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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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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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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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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.

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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.

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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.

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Is it possible to have a happy family holiday post-divorce?

children and father on holidayIs it possible to have a happy family holiday post-divorce?  No divorcing person needs to be told how important their children are and no divorcing parent needs to be told how stressful the process can be and how difficult, in particular, the summer holiday period can be.  There is the practical difficulties of arranging childcare over the summer holiday with your partner or ex-partner, and of course deciding who is to go on holiday with whom and when.  Added to all of this there will be the fact that having separated or divorced, the parties are generally worse off financially, so all of this combines to produce what can be a very stressful situation.

Among the issues you and your children may be worried about this holiday period are:-

  • Which parent will have access to the children and when?
  • Will the children be able to fully relax and have a fun time with only one parent, will they not feel disloyal or miss the other parent?
  • Will there be any competition between parents about the provision of a holiday, is the parent with the better job or a new partner able to give the children a better holiday?
  • How do you deal with the fact that there may be sad memories of past holidays when you were all together?

Of course holidays will never be the same post-separation but here are some practical suggestions to have the best possible holiday:

  1. Start by planning ahead – having a schedule in place for when the children will be with which partner will ease their anxiety and help any transitions between parents.
  2. Before going away make a mental resolution to enjoy the holiday, whatever the circumstances are during the lead up to it.  Whatever trauma and stress you may have been through as a family, whatever you might be feeling towards your ex, try and have a good time away with your children.
  3. Have the best holiday you possibly can under the circumstances.  Show the children that whatever has happened to the family, you still love them and want to share your holiday, and in particular, your time with them.
  4. Don’t say unpleasant things about the other parent. You don’t want your children to feel guilty or confused about spending holiday time with your ex-partner.
  5. Let your former partner have their quality time with the children and don’t argue about it or interfere.  You both have as much right to spend time with the children as each other.
  6. Appreciate that your children may be sad that their parents can’t both be there to enjoy the holiday together. Let them know that it is okay to feel that way.  Don’t pressure them to act happy if they don’t honestly feel it.

I am grateful for Dan Couvrette of Divorce Magazine for some of these tips.

Further tips are available from Nicola Menage who specializes in stress management including stress resulting from relationship breakdown.

Above all, try and have a good holiday!

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

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