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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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.

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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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What is Mediation?

mediationThis might be a strange question as everyone assumes they know what mediation is.   But when you also have collaboration, arbitration and compromise, what exactly is mediation and how does it differ from the other approaches to problem-solving?

With mediation there is generally one mediator with two people who have, for whatever reason, not been able to resolve the difficulties between them.  There may be some conflict; if there is a relationship breakdown there is generally a degree of hurt, anger, sadness and other emotions, all of which can make it difficult to resolve issues.  But the point is to deal with differences, not in a destructive adversarial way, but with a more rational, positive approach to problem-solving.  You are not going to eliminate conflict but rather transform it and separate those involved and their emotions from the particular problems.

The issues or problems can be:  how are the couple going to separate, where are they going to live, how are they going to manage the children?  There will need to be some degree of co-parenting but how will this work out in practise?  A rational approach does not mean leaving aside personal feelings but to try and concentrate on what the problems are, not the emotional aspects of the relationship.

If you are separating it must be better to work towards your own solutions rather than having a decision dictated by someone else.  So often you hear talk about “going to Court” as if it is some sort of panacea that will automatically solve all the problems.  It might produce a decision but whether it is the right decision is a moot point.  It is not the decision the parties may have chosen for themselves and it is sometimes not one that may have thoroughly considered the practicalities of its implementation.  The best solution for a couple going through a divorce or separation is one they have created rather than the one that is imposed.

It may be difficult not to take up positions and feel that any sort of compromise is giving in.  But the more people position themselves, the more committed they become to that position, defending it against attack and so becoming concerned about saving face rather than reaching an agreement.  The more attention that is paid to positions, the less attention is devoted to meeting the underlying concerns of both parties.  A mediator can help move from positions to focusing on what the parties really want, looking at interests rather than positions.

Mediation is not a question of one party imposing their view, as any settlement achieved by hard bargaining may resort in short-term gain but often the result is damaging to the relationship.  The whole point of working through issues either through mediation or the collaborative process is to preserve some sort of relationship between the parties.  Although parents might be separating, it remains essential for their children that they maintain the ability to communicate.

People often come to mediation realising that the stakes are high and feeling threatened, fearful or anxious.  Emotions in one party will generate emotions in the other – fear and anger may take over.  It is important to recognise, understand and acknowledge emotions, many of which are driven by concerns.  Attending to those concerns can possibly deal with the emotions and so create a more positive climate for problem-solving.  Emotions are legitimate but they should not necessarily take over and determine outcomes.

With the lack of legal aid now available to fund most Family Court actions and with the cost of arguing through Lawyers and the Courts rising, it makes sense to look for alternative ways to problem-solve.  Mediation and the collaborative approach in divorce not only are a means of problem-solving, without the bitterness that can ensue with Court battles, but also far more cost effective.

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

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