A Family Disputing a Will – Could Mediation Have Helped?

Glass and notepadA judgement has recently been given by the Supreme Court in a case which involved a family disputing the Wills of their parents.  The case of Marley and Rawlings had been to the High Court and, just recently, the Supreme Court – so it obviously cost the family a considerable amount of money in legal fees.

Lord Neuberger gave judgement in the Supreme Court and said that the Wills of Maureen and Alfred Rawlings should not be invalidated simply because they had each incorrectly signed the other’s Will – he stated that it was obvious what the intention was meant to be and this should be effected.  Both Maureen and Alfred had left the entire estate to Terry Michael Marley who was not a blood relation.  The mistake came to light after Alfred Rawlings’ death and his two sons argued that their father’s Will was invalid because it had been signed by the wrong person (Maureen).  That meant his estate passed to them as the nearest relatives.

The case was first heard in 2012 in the High Court which had said that although the intention was obvious, the court did not have the power to rectify the Will, even though there was no doubt that the Rawlings had wanted Marley to inherit.  This meant that everything was to be passed to the sons.  This was completely changed by the recent judgement of the Supreme Court on the 22nd of January.  It stated that “whether the document in question is a commercial contract or a Will, the aim is to identify the intention of the party or parties to the document” and ensure that the intention was carried out.

In other words, what the Rawlings had wanted in their Wills still stood, despite the mix up over the signature.

The other point is, as I pointed out at the outset, that potentially hundreds of thousands of pounds have been spent by all the parties arguing over this – money which is now lost to the family.  It might have been a better idea to consider mediation and see if a compromise settlement could be reached without the huge sums being paid to lawyers.  An interesting point of law has been established but at a fairly considerable final financial cost to this particular family.

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

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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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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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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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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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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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Is divorce contagious?

3 children runningI recently read Malcolm Gladwell’s “The Tipping Point” in which he talks about how events that were, at one point, unusual become common place, styles that were uncommon suddenly become all the rage. One example he used was Hush Puppies, a shoe that went out of fashion suddenly came back into fashion for no other apparent reason than a few people started to wear them, then a few more, then a few more and then the ‘tipping point’ is reached and suddenly they are the height of fashion and what everybody wants to wear.

He gives another example of yawning. If you read about people yawning, even just the word ‘yawn’ or see people yawning, then what do you want to do? Yawn yourself. It’s contagious.

Is divorce contagious, is it more common than it used to be? Is there a point at which it becomes so common place that it loses it’s significance? Certainly there are trends and I have written before about the growing trend that I see, of divorce amongst those aged 55 and over, coined ‘the silver splitters’, often deciding to get divorced when the children leave home.

For my parent’s generation, divorce was unusual. In my daughter’s class at school, she and one other were the only children whose parents are not divorced. So the situation where children are spending weekends with different parents becomes the norm. Is this a good thing or not?

Obviously for people trapped in unhappy marriages it has to be an advantage that divorce is made as easy as possible with practical help and support, and no social stigma – but if it becomes too ‘easy’ does it mean that people don’t try to make marriage work?

Well, as someone who deals with divorce everyday, I have yet to find anyone whose separation is at all easy. Even if you are the one who is initiating proceedings, it is full of emotional and financial difficulties. Although it might be becoming more common and more acceptable, it is still never easy. My job is to try and help people going through a divorce or separation and to make it as un-contentious as possible, and certainly I would also say that the more that can be agreed and the more that can be dealt with in a civilised and non adversarial way – the better. But it is never easy.

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

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Changing the family for the better

Little girl in a fieldWe are all aware that divorce rates are rising and there is supposedly a crisis with the nuclear family in Britain. We look back to some mythical time in the 1950s with its low divorce rates and seemingly perfect happy families, to a time that we may want to emulate. However, there were very real social and economic pressures which prevented people from divorcing. Women had very little economic freedom and a divorce often meant social shame and economic hardship. Only the rich could divorce, and even then the fear of scandal would often prevent it. Surely it’s better that we now have the freedom to leave unhappy relationships and hopefully form better ones.

Henrietta Moore, a Professor of social anthropology at Cambridge gave a talk with the following fascinating facts. Women nowadays spend three times longer with their children than they did during the 1970’s, even though more women are now working. Fathers obviously spend more time with their children, in the 1950s the average time that  a father spent with his children was 5 minutes a day.

In the 1950s only 2% of the British population lived together before marriage, now it’s over 77%.

We increasingly have the pattern of older children, even married children moving back to or remaining in the family home. Children rarely leave home when they go to University, they retain a base and lack of employment or low wages mean that many young people are forced to remain living with their parents for economic reasons.

The big change is the fact that fathers’ time with their children has increased by 200 times since the 1950s.  It’s a given that the fathers spend quality time with their children, and if parents separate, that both parents have a continuing role in those children’s lives. Why is it though, that with both parents spending more and more time with their children, this seems to have coincided with a huge increase in divorce rates?

It’s obviously socially much more acceptable for couples to separate, and although financially difficult, it is generally possible to share the assets so that both parties can survive economically.

In many ways, we seem to have a much better family life than during the 1950s, perhaps it’s just a reflection of the fact that we don’t often get it right the first time. It must be an advantage that we have more freedom to choose the type of family arrangement that best suits us and our children, provided that we can remember that everyone in the family has needs.

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

 

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The Modern Medea

MedeaMedea is a Greek Tragedy written by Euripides around about the 5th Century BC. It tells the tale of a wife scorned by her husband so enraged by her predicament that she takes revenge through their children. In her desire to hurt him she kills their children. Far fetched? Well, I have just been listening to the news and it seems that over the past few months we have had more than one example of husband killing wife (and vice versa but not so often) and more distressing and perplexing still, surely, the cases where is seems that an estranged father has killed his children almost saying that if he cannot have them thean neither can she. In other words, so distraught by the situation that the husband decides to kill himself and the children.

Passions in family disputes run high and it is extraordinary to think that a tale written over 2,500 ago still has relevance today.

I would certainly hope that the day to day family cases that I and other family lawyers deal with are not on a par with anything like this but even in collaborative cases where the parties are making every effort to deal with their separation calmly and rationally and in a way that puts the children’s needs as paramount, feelings still run high and bitter arguments can take place. We all say things in the heat of the moment that we regret later. When people separate it is rarely pain free. There may be hurt, arguments over the children, dealing with the pain of rejection, all very painful and emotive. But it is never a good idea to make important decisions when in an emotional state, far better to try and think things through rationally.

Never easy, particularly for instance if you are on the receiving end of a Divorce Petition or feel that you have to instigate a separation because your marriage is at an end. Separation has all sorts of consequences – the family home may have to be sold, neither parent may have as much contact with the children as they are used to, the pension that you have built up over a lifetime has to be divided – all potentially devastating circumstances. Understandably feelings run high.

However, this is where mediation can help, to help you think things through rationally, make decisions that are in your interest not necessarily based on emotion but on reality, and what is in fact going to be best for you and your children – certainly not Medea’s solution! The story might make great entertainment but it is devastating for all concerned. The key point in any family dispute is to try and find a solution that is, as far as possible, in everyone’s best interest. It is not a battle, it is not a fight that one person can win or lose, but a negotiation and one best carried out as far as possible free from emotion, although everyone is obviously fully aware of the emotions involved. This is why mediation is so important, having someone there who is neutral and well used to dealing with the emotions and pain of a separation but who can give good advice on potential ways forward.

Medea makes great entertainment – it is a fascinating and powerful play – but something to avoid in real life. There can be positive outcomes to a divorce; children can spend quality time with both their parents and a new relationship may be better than the old one.

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

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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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