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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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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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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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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