WHAT IS FAMILY MEDIATION?

The start of a new year is often a tricky time for families – has this been a stressful Christmas period? Has spending too much put pressure on family finances and inevitably on relationships? Has the extra time off work meant there’s been time to reflect on the reality of marital issues?  In the new year, couples often make new year’s  resolutions and one of those could be that they should face up to their difficulties and get professional help to resolve them.  Before they rush off to Court, specialist family lawyers always recommend looking at mediation.    Amanda Thurston, Head of the Family Law Team at Curwens Solicitors explains :

“A recent “fly on the wall” documentary followed a family mediator helping couples agree the terms of their separation or divorce. From whether to sell the family home, to how much maintenance to pay, or how often one of them can take the children on holiday, splitting up a family can be a minefield.

So how does Mediation Work?

The first thing to remember is that mediation is voluntary, so both parties need to agree to try it out and also which mediator to approach. The Mediator will then usually want to speak to each party individually before setting up meetings for everyone to attend. Each party gets the chance to raise the issues or concerns they have and the Mediator will try to get the other party to listen to them before expressing their own views. The Mediator will also help the parties discuss the family finances and agree on what information and documentation they each need to provide to help with the negotiations.

These meetings can be stressful if agreement is not easily reached on a point, but the Mediator is specially trained to deal with those situations. They can even do “shuttle mediation” with each party in a separate room if the parties’ relationship has got to the stage where they can’t even be in the same room as each other.

Between the mediation meetings each party should ideally obtain independent legal advice so they know what terms would be reasonable to propose or accept.

If terms can be agreed between the parties, the Mediator will provide a written Memorandum of Understanding. This is not yet legally binding – but is evidence of what you have discussed and agreed. You can then take it to family solicitors to be made legally binding if you wish.

If the mediation breaks down, the Mediator can sign a form for the Court, to allow one of the parties to start Court proceedings.

Mediation Information and Assessment Meeting (MIAMS)

There is currently a requirement in place that you must at least attend a MIAMS before starting most Court proceedings regarding children and/or finances, to find out whether Mediation would be suitable for you. (There are certain exemptions in place – for example if it is an urgent case)   The MIAMS is a one to one meeting with a Family Mediator who explains all the alternative routes available to you to try and resolve the dispute without starting Court proceedings. The aim is to ensure you are fully informed about all your options and you understand what would work best for your situation.”

 

If you would like more information on Mediation, please contact

the Curwens Family Law Team:

Royston                   Amanda Thurston              01763 241 261

Hoddesdon              Kristina Nickoli                    01992 463 727

Enfield                     Vijaya Sumputh                   0208 363 4444

 

www.curwens.co.uk

Curwens have offices in Royston, Hoddesdon and Enfield.

 

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“The Archers – what next for Helen and her children? The Family Lawyer’s view “

Those of us who are Archers fans have been glued to our radio sets recently, following the latest stressful storyline – stressful for the characters and fans alike – involving the trial of Helen Titchener (aka Archer).  Although it is fiction – and exciting fiction at that – there are lots of issues that have been thrown up by this storyline such as abuse, controlling behaviour and custody disputes which all too often happen in real life.  Although Helen’s barrister, Anna Tregorran, eventually triumphed spectacularly in both Courts (Criminal and Family) we have to remember that it was scripted and a lot of dramatic licence was taken, so I was delighted to spot an excellent article written by four real life barristers from 42 Bedford Row who specialise in Family Law.

http://www.42br.com/wp-content/uploads/2016/09/Archer-v-Titchener-FINAL18-09-16-1.pdf

Thank you Jennifer Kotilaine, Pauline Troy, Emma Romer and Eilidh Gardner for a very helpful explanation of what could happen to a real life “Helen”.  They give their opinions about might happen to the children in a disputed case like this and what the future might hold for Helen.  http://www.42br.com

Meanwhile, to lift the spirits – something good has come out of all this. An Archers fan, Paul Trueman, was inspired to help all the real life “Helens” out there and so set up  The Helen Titchener (nee Archer) Rescue Fund  – We’re raising money for Refuge because for every fictional Helen, there are real ones. 

Since February 2016, Paul’s fund has raised £168,975. His JustGiving page is still open for donations

https://www.justgiving.com/fundraising/helentitchener?utm_source=Twitter&utm_medium=fundraisingpage&utm_content=helentitchener&utm_campaign=pfp-tweet

Finally, in traditional voiceover style, if you or anyone you know have been affected by Helen’s storyline, experts at Refuge (www.refuge.org.uk) are ready to help.

Family Solicitors

 

 

“I’ll see you in Court!”

Recovering a trade debt 

There is a lot to consider before starting court proceedings in England & Wales:

  • The court has to deal with matters “justly and at proportionate cost.”
  • Do a cost/benefit analysis before starting proceedings, including the cost of enforcement.
  • Check the other party is good for the money – there’s no point incurring the cost of litigation if you can’t enforce the judgment.
  • Don’t start proceedings if you don’t intend to see them through. Unless it’s a small claim (less than £10,ooo) you’ll almost certainly be liable for the other party’s costs if you discontinue the claim.
  • Be careful about always threatening to sue if you don’t mean it – don’t just “cry wolf” – the word will get round to your contacts and damage your reputation.
  • Recovery of your legal costs depends on:
    • who wins or loses;
    • your conduct as well as compliance with court rules and orders (for example, a failure to comply with a pre-action protocol can have cost consequences even for the party that wins);
    • when the matter ends (whether before or after proceedings have been started);
    • the financial value of the claim and the “track” the claim is allocated;
    • how the claim is concluded (whether by agreement or at trial).

Reaching a settlement

Litigation can be disproportionately expensive to the sums being argued about, the outcome is uncertain, the court is only able to offer a limited range of remedies and litigation often destroys any prospect of the parties resuming a commercial relationship so consider alternatives -for example:

Negotiation

  • It might be possible to recover the debt or agree an alternative future course of action by opening a negotiation with the debtor.
  • This can be done verbally or in writing (which includes e-mails).
  • Parties usually negotiate on a without prejudice basis.
  • The without prejudice rule generally prevents statements made in a genuine attempt to settle an existing dispute from being used as evidence of admissions against the party which made them.
  • This rule means that, if the negotiation or mediation fails and the business then issues court proceedings, any statements that the parties made in a genuine attempt to settle the dispute (whether in writing or orally) will not be put before the court in the proceedings.

Mediation

  • Mediation is a flexible, voluntary and confidential form of dispute resolution in which a neutral third party helps parties to work towards a negotiated settlement of their dispute.
  • The parties retain control of the decision whether or not to settle and on what terms. 

Doing nothing

You can always simply write off the sum but before taking this step, consider the:

  • Size of the debt.
  • Likely cost of recovering the debt.
  • Importance of the current relationship between the parties.
  • Likelihood of maintaining an on-going commercial relationship between the parties.

norma.morris@curwens.co.uk

http://www.curwens.co.uk

http://www.justice.gov.uk

 

 

 

“It’s good to talk …….

Clare    Claire Pilsworth

Are you separated or thinking of getting divorced ?

If so, you need to explore mediation because it really does work – after all, you know the needs of your family better than anyone. This explanation comes courtesy of my colleague, Clare Pilsworth, a Family Law solicitor and Mediator

“Mediation is a process which helps people who are separating to discuss and agree on the best arrangements for their future. It works because it is a voluntary process and allows you to find a solution personally tailored to you. Mediation can be used to make arrangements for children, discuss finances or both (known as “All Issues Mediation”).

Our Mediators find out from you what’s most important to both of you and in your meetings, will help you both to make your own decisions about the best way forward for your family. This is possible because our Mediators:-

• are specially trained to guide you in your decisions
• provide a calm and confidential environment in which to talk
• help you to make informed decisions
• are Resolution Mediators – trained by the specialist national organisation of family law advisers.

Mediation is voluntary,  however, if you are starting Court proceedings in family matters you are required to attend a Mediation Information and Assessment Meeting (MIAM). This is a confidential meeting on your own, to find out about how you could sort out matters without using Court proceedings.”

If you’d like more information about Mediation to find out whether this would be a good choice for you, contact Clare Pilsworth on 01763 241261 or email clare.pilsworth@curwens.co.ukhttp://www.curwens.co.uk

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BUSINESS DISPUTES

If you are in business for any time at all, it’s inevitable that at some time you are going to get into a dispute with a customer or a supplier. If you’re looking to a Judge to resolve these matters for you, you need to keep in mind that the Courts are moving very much nowadays towards Alternative Dispute Resolution such as Arbitration or Adjudication, often specifically included in certain types of contracts. Something which is also becoming extremely popular nowadays is Mediation. For those of you who aren’t familiar with Mediation, it’s a process where both sides agree to meet together, away from the Court system, using the services of an independent Mediator who is specially trained to help both parties come to an agreement which will suit both of them.

There are advantages and disadvantages to this process, the main advantage being that in most cases, even if you take into account the cost of a Mediator – and that is shared between the parties – overall, it often works out cheaper than going through the Court process all the way to trial. Also, you save the time and stress of going through the Court process with the uncertainty and risks of litigation – something I believe is very important for business.

Even if you don’t manage to settle on the day, the process also helps to thrash out some of the points of disagreement between you. I have seen some cases where, even if people don’t manage to settle on the day, sometimes they settle shortly afterwards.

There is one disadvantage if you don’t settle – if you do have to then go on to trial, you incur the additional cost of Mediation but I would say that in my experience, the advantages certainly outweigh the disadvantages. Mediation is extremely popular with the Courts and a Judge at trial will always ask whether the parties have tried Mediation and if they haven’t or one party has refused it, the Judge does have the power to make the Costs Orders as a penalty against the stubborn party – that’s a serious warning about Costs! In conclusion, if you do ever fall out with other parties in business, think carefully about how you can look at resolving it in an alternative way before involving the Courts. At Curwens we have many years of helping clients in these situations so just have a look at our website http://www.curwens.co.uk