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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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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The most popular age to get divorced?

There were several articles in the press recently about the latest divorce figures suggesting that the only reported rise in the divorce rate is amongst the 60+ age range.  This doesn’t necessarily mean of course that this is the most popular age for divorce, merely that there is a new trend – the numbers of those over 65 getting divorced is certainly increasing but in my view the most common age for divorce remains mid-late 40’s.

This may be because younger people have never married in the first place.  With short-term relationships or marriages there are often no children or few assets to argue over – it is only when there are children, pensions, property, mortgages and all the other aspects of aging and longer relationships that separation becomes more complicated.

IMG_9769webSo why more divorces amongst the over 65?  Is this simply an aspect of us all living longer and having higher expectations of our retirement?  We are no longer prepared to simply settle down with our partner of the last 20-30 years.  We may decide that the prospect of possibly 20 years with your current partner and no work as a diversion is simply too much to bear.

It can though come as a shock to anyone expecting to retire on a comfortable pension to suddenly find themselves faced with a Divorce Petition which will involve sharing that pension and possibly selling the matrimonial home and looking at either down-sizing or taking out a mortgage when you least expected it.  There are some advantages though to divorce so late – children are generally grown up, possibly even having left university, you are no longer responsible for them in any way, you no longer have to provide a ‘family home’ in the traditional sense.  But however old they may be, children still feel the impact and possible pain of their parents’ separation.  They may have left home but they would like the possibility of returning to what was their childhood home intact, and also what about the grandchildren?

While the percentage of divorcees amongst the over 65’s is still relatively low, the rate of disengagement is growing fast.

Divorce for the retired certainly has different aspects to a separation where there are young children, mortgages to pay and a career to establish – but similar principles apply.  Far better to separate constructively and collaboratively than incur unnecessary legal costs with stressful arguments through the courts.  One expenditure which is hard to avoid however, is an actuarial report.  Pensions obviously loom large in post-retirement separation and a proper actuarial value of your pension is essential.  You will not only want to look at its actual cash value, but also projected incomes going forward for both the male and the female – with their different life expectations they will need different pension pots to produce similar incomes.  Never has professional advice in relation to pensions been so important.

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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5 ways to avoid divorce

Kids playing on the beach1)   Marry the right person. This may sound obvious, but it is amazing how many people really do marry the wrong person, or fail to take sufficient time to make sure they make the right decision. Far better to try and ensure a correct decision than have to undo the wrong on later. Divorce is never easy.

2)   Don’t expect your spouse to change. People do not fundamentally change, annoying habits do not go away, things that irritate you are never going to get any better. Learn to love the characteristics of your partner.

3)   Beware of holidays.  Holidays, particularly when you have children, can be very stressful. Peak times for divorce are September after the summer holidays and January after Christmas. This may be because the family is spending time together, or expectations were too high.  Be realistic – the ideal family does not exist – nor the perfect holiday.

4)   In a similar vein beware of Christmas. It can be an extremely stressful experience entertaining other family members, dealing with over-excited children or concluding that you cannot face another Christmas in with your current partner.

5)   Remember the grass is not always greener. You may not be married to the perfect person, but what is the alternative? Would you rather put up with the person you are living with than being on your own or taking a chance with someone new?

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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Who has the children?

children walking togetherWhen parents separate a key question is what is going to happen to the children.  Contrary to popular belief both parents not just fathers, fear that they will see less of their children.  Obviously dads worry that they may not have so much contact with their children but mums worry about that too.  The question of who gets the children can and does cause enormous stress and stress can lead to anger and resentment.

A lot of that anger is in the form of assuming that the Courts in some way favour women/mothers but the reality is very different.  Most disputes over children thankfully never get anywhere near the Courts and are resolved by other means.  But the overriding guidelines are that when parents separate they both remain parents of the children, they both have a role to play in children’s lives which mean that they both have equal rights and responsibilities with regard to those children.

Obviously if they are living separately then practical arrangements will need to be made about when the children see and stay with each parent.  But if it is made on the clear understanding that whatever the practical arrangements it is a shared and joint arrangement, it can reduce a lot of the anxiety and anger.

It is helpful for both parents if they recognise that they are both going to be involved in their children’s lives whatever the outcome of the separation.

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

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