Wednesday 9 March 2011

‘Exploratory Mediation’

Over the last few weeks I have had more enquiries from
couples wanting to attend a ‘one-off’ mediation session prior to
seeing their solicitors to establish what areas may be in dispute
and trying to narrow down the issues they may be potentially

I effectively draw up a list of everything imaginable that could
be in dispute and we work our way through it. For the couple
to find common ground on one item, to some of them seemed
impossible. But generally we do better than that and find that
we can segment the list into particular areas, for example,
children in relation to contact and residence, what are the
housing options, ‘where is everyone going to live’, maintenance
this I can break down by asking the couple to start looking at
their budget sheets and from this we can establish the basic
requirements etc.

It is quite remarkable that once the couple start communicating
they start to lead the way in the conversations and
negotiations. I am a realist and mediation is not the solution
for all couples separating but, for some this ‘one off’ mediation
session helps them to identify the issues and focus on these, if
the dialogue has already been opened who knows.....

Presentation for Ladies Investment Group at Brookes Macdonald

Attended the Ladies investment group at Brookes Macdonald last night and spoke
about mediation explaining what it is and how it works on a practical basis when
couples are divorcing or separating. It was great that Claire Jordan from Farrers
solicitors also spoke, focusing on Collaborative Law.

It was generally felt that the changes that are coming into place on 6th April will raise
 the public’s awareness of mediation and its place within the system.

Wednesday 16 February 2011

Summary of What Mediation Is......

Mediation is a way of resolving issues that arise when a relationship breaks down
and a couple decide to part.

Mediation is a process that allows discussion about issues relating to divorce and
separation in a calm, neutral and professional environment.

Mediation helps couples to make decisions on all areas, financial or children, which
arise following their relationship breakdown.

Mediation helps couples make the shift from being parents who live together to
being co-parents who live apart but can work together for their children.

Mediation is more cost-effective, much quicker, and infinitely less stressful than the
Court process.

Tuesday 8 February 2011

Can you really have a happy divorce?

The Government, and a new divorce road show, say that mediation is the answer, but will it work for everyone?
From Katie Price to Marco Pierre White, divorcing celebrities are providing us with an enrapturing drama every week. It’s thought that Price will file for divorce from Alex Reid this Thursday — her first wedding anniversary. Two weeks ago Pierre White revealed an unexpected twist in his acrimonious three-year, £3 million divorce proceedings: he and wife Mati will stay together after all. It turned a bitter tale of one of the most expensive divorce battles in British history into something of a fairytale.
But whether you’re a £50 million restaurateur or not, everyone who goes through divorce stands to lose a significant portion of their money. With 140,000 divorces each year and average legal fees of £13,000 each, it’s a booming industry, particularly at this time of year, after the Christmas and New Year fall-outs. While celebrities may be able to afford expensive solicitors, for most they are crippling. “The fees sunk me financially,” says Michelle Matthias, 38, who separated from her husband of 14 years after Christmas 2008. “My solicitor’s fees were £400 a month. There were various problems so we had to bring in new law firms and the bills mounted.”
And of course the painful cost of the process is often dwarfed by the emotional turmoil for both parties and the children involved. On Thursday a new breed of divorce fair takes place aimed at mitigating all that. The Starting Over Road Show (SOS) at Farnham Castle, Surrey, is the first event to specifically promote collaborative law and mediation. It takes a holistic approach to separation, introducing the newly separated to life coaches, financial advisers and counsellors.
“There will be no divorce cakes or divorce T-shirts, no private investigators and no DNA testers,” says Suzy Miller who organises the road show. “SOS Farnham Castle is about helping people to deal with pain and confusion. Divorce can happen to anyone but the way you deal with it can be the difference between sharing Christmas morning with your ex or swapping the kids over at service stations because that’s ‘neutral ground’.”
The fair has taken place before, but this one has a difference. As part of the Government’s drive to promote mediation and bring down the emotional and financial cost of divorce, this one is backed by the Ministry of Justice, which is keen to promote mediation within its Family Justice Review, commissioned 12 months ago.
This approach is certain to become more necessary as the Justice Secretary Kenneth Clarke plans to drastically cut legal aid for family law cases. It can be a cheaper and quicker way to wrangle over assets and child-access issues. Lawyers need be brought in only to rubber-stamp the mutual agreement. Figures from the National Audit Office indicate it can cost 25 per cent of the price of lawyers’ fees (as little as £1,000) and take 25 per cent of the time (as quick as 110 days) of going to court.
Mediators are either allocated through the legal-aid system or, for privately funded cases, recommended by solicitors. In a mediation session a couple sit in a room and try to negotiate a settlement in front of an objective third party — the mediator. But how easy is it for two people brimming with emotion to sit face-to-face and rationalise?
Adam Kirkwood, 52, completed his divorce from his wife of 14 years in November last year, seven months after they started the process. He required just three mediation sessions before they agreed on a financial settlement and access rights to their 12-year-old son. “My immediate thought was, how will I keep my wife on track. What if she gets angry during the session? But it didn’t get emotional — it was businesslike. The mediator was skilled at keeping us moving forward. If the temperature did rise, she’d stop us and say, ‘I hear what you’re saying. Let me summarise the points you’re trying to make there’.”
But not all cases are as cut and dry. Lucy Gilchrist, 43, was married for 15 years and has three children with her ex. Her first attempt at mediation broke down. “We weren’t emotionally prepared enough to take that route. I think you have to recognise that for a roundtable approach to work, both have to want to do it and be ready to achieve something.”
The feelings were too raw, she says. “There was still blame for the breakdown of the marriage and so we weren’t in a place to deal with the detail of divorce. I am a strong believer that mediation is a preferable route because then you both feel you have ownership of that agreement and still have some respect for your partner. But it will work only when both parties accept the situation.”
After their talks broke down, Gilchrist sought life coaching. “You have to work on yourself to defuse the emotion. Only then can you deal with the practicalities.” The second attempt was successful. She was so moved by the difference coaching made that she trained to become a transition coach and has set up her own support service to guide individuals going through divorce.
She will be advising at the SOS show on Thursday.
The Government, of course, is keen to keep people out of court when the case concerns children. Parents seen to be working together rather than talking via solicitors’ letters is far less disruptive. Suzie Hayman is a Relate counsellor and author of several parenting books, including Moving On: Breaking Up Without Breaking Down.
“So often we see warring parents concentrating on their own upset,” she says. “They either expect their children to be taking the same side as them or they expect them to feel nothing. The argument needs to be put aside and parents need to co-operate with co-parenting. Counselling works on one level but mediation works on another in that it allows you to agree.”
The Ministry of Justice says that it would never push a woman towards mediation if the case involved domestic violence, forced marriage or child abduction, but evidently this may not be a fail-safe precaution.
Sarah was in an abusive marriage for 15 years but still ended up in a mediation room. “I hadn’t divulged the extent of the violence,” she says. “There is still that stigma about it. Women don’t like disclosing they are in a violent relationship. In front of the mediator he was Mr Charming. He made a great show that he was paying for the sessions and that he tried to keep the marriage going. I couldn’t bring up that he was violent. I thought she wouldn’t believe me. People shouldn’t be pushed into mediation. It should be voluntary.”She eventually got help from Woman’s Aid, which supports abused females and children.
It’s not just domestic violence or forced marriages where mediation could be disastrous. Charlotte Friedman is the founder of the Divorce Support Group, which provides emotional and psychological support for those going through separation. “There are some people with whom it obviously won’t work. If one partner has always held the purse-strings, for example, then the other one may not even know what their assets are worth. How can they trust their partner will disclose everything? Then there are those who can’t sit in the same room together. All sorts of emotions get stirred up. She may be angry with him because he’s had an affair. He may be angry with her because she didn’t turn out to be the wife he wanted her to be.”
Friedman handled a case recently in which the husband was desperate to see his two children. The wife was angry that he had left her and was living with someone else.
“She wouldn’t even look at him,” Friedman says. “He said he would be willing to take them two nights a week. Her response was rage. She said, ‘You have no idea how hard this is. I am the one that deals with the tantrums while you are living a new life of Riley’. The problem was that his message was ‘I want to help’, but her message was, ‘How can you have done this to me — I want to punish you’. In those cases the only route is to use lawyers.”
That’s not to mention the discomfort of facing the person who has just left your life. Michelle Matthias recalls her experience: “It was intimidating. To get out of the door he was in the way. It was like being in the headmaster’s room at school — with him as the headmaster.”

Friday 4 February 2011

Mediation Workshop at the IDRC

I was involved with a mediation workshop last week at the IDRC in Fleet Street. We
presented to an audience of about 18 people consisting of QC’s, solicitors, investment
advisers, parenting counsellors and journalists.

We ran the workshop as a ‘look inside the Mediation Room’ and effectively we showed
a ‘mock’ mediation from start to finish.

The response was fantastic and some of the comments that we received were ‘ illuminating,
exciting, fascinating, clear and simple explanation of how mediation works within families
separating and that it provides a road map for couples going through separation and gives
order to a person in chaos’.

Yet again it was so positive to be able to demonstrate to a wider audience that mediation
can really help couples to deal with the issues that arise on separation and divorce and how
it can really assist couples to deal with contact in relation to their children.

As ever we are not being evangelistic about mediation as it is not the correct route for all
couples but it can often play an important role in some of the decisions that need to be
taken. Further it emphasised the importance of working alongside the legal profession and
being able to provide a clear and focussed discussion.

Thursday 20 January 2011

The Law Commission publishes Consultation Paper on Pre-Nuptial Agreements

The Law Commission has published its consultation on the future of pre-nuptial
agreements seeking views on a range of potential options for reforming the law of
pre-nuptial, post-nuptial and separation agreements.

In its consultation, the Law Commission provisionally proposes that nuptial
agreements should be in writing with each party required to take legal advice,
and the party seeking to enforce the agreement must have made full and frank
disclosure of their financial disclosure of their financial situation. It also proposes
that an agreement should not be enforceable if it fails to provide for the needs of
any children of the family, or leaves one party dependant on state benefits.

The consultation follows the decision of the Supreme Court last October in the case
of Radmacher v Granatino which ruled that prenuptial agreements can be decisive in
determining the financial division on divorce.

Many family lawyers are looking for clarity in the law and are hoping that the Law
Commission will deal with this. The family lawyers association , Resolution, has
said it will be making the case to the Law Commission that pre-nuptial agreements
should be considered binding as long as the needs of any children are satisfied and
provided that they do not result in injustice.

Friday 31 December 2010

Mediated Christmas Agreements

Over the holidays whilst preparing Christmas lunch for my family I thought about
the agreements that I had mediated the past year, a lot of them involving where
children should spend Christmas.

There have been so many permutations, alternate holiday years and then the
question is who has the first Christmas with the children – odd and even years? But
then the question can be is Christmas one or two days? or some families who are
from the continent consider the 24th December is the most important day. I have
agreed a split Christmas day, but then who serves the Christmas meal? The other
issues that have to be considered is transport to and from the Christmas venue,
introducing new partners and what everyone wants to eat..Not even taking into
account where the stockings are opened, the presents being bought, one from each
parent, joint presents....These issues continue well into adult hood and sometimes
parents feel able to spend the day together which is marvellous but we may then
draw up a list of boundaries that will be need to be respected. I haven’t even
touched on the involvement of grandparents...I now have a list in my files of all the
possibilities and I draw on this if necessary.

So the next time someone calls me and says ‘we just want you to mediate about
Christmas it’s quite straightforward and won’t take long’... I will pull out my 4 page
list of previous agreements...

I hope you all had a peaceful and harmonious Christmas.