Miles away……….

Just like the title to the 2008 song, Madonna and Guy Ritchie seem to be miles away when it comes to deciding where their son, Rocco should spend his time. The Honourable Mr Justice Macdonald, in the recent High Court decision, presents a strong message that Courts should not be intervening in children related disagreements. Mr Justice Macdonald states that although “the law provides a mechanism for the resolution of disputes between parents in respect of their children it is but a blunt instrument when compared to the nuanced virtues of calm discussions and considered compromise”. This is more than a nod in the direction of mediation, whereby parties to dispute are able to sit together and discuss the virtues of their respective arguments.

In the final message of his judgment Mr Justice Macdonald focused on the transience of childhood, and that this time should be embraced and treasured, not spent embroiled in litigation.

Mediation seeks to focus parents on their children and determine what is best for them. It forces parents to talk matters through, calmly and together, erasing months of wasted time trapped in the court system. Mediation is often seen as an option for parents who are amicable. However, this is not the case and many a bitter and protracted situation has been resolved through mediation.

Should you wish to find out more about the mediation, please contact Rachel Jaysan.
020 8958 2073

If Gywneth and Chris Can Do It So Can You

Reading about antagonistic, high profile divorces has become so commonplace that one doesn’t even feel the need to raise an eyebrow at the deplorable way in which, one time sweethearts reduce themselves to public clashes, regardless of the ensuing damage caused to themselves, and most tragically their children.

What should be a family’s most private and often devastating hours of need are flaunted across the tabloids instead of being dealt with in a sensitive and controlled environment.  Of course not everybody’s lives are of interest to Joe Public.  However, the theory remains the same.  Invariably during a relationship breakdown, one or both parties will divulge intimate and damning allegations about their ex to various family members, friends and even acquaintances.  This often adds fuel to the already blazing fire and seeks to aggravate the situation further.  Not only does this ostracise and alienate children but also inevitably results in each party raising their defences, unsurprisingly triggering lengthier and more costly divorce proceedings.

Although, it has been a while since Gwyneth Paltrow and Chris Martin separated they have done so in a dignified and child focused way.  I have waited for a public spat, a sly aside but there have been none.  Of course, not all separations are as amicable, and often one or both parties have suffered considerably from the action(s) of their ex.  Often in situations such as these a couple thinks there is no alternative but to turn to a lawyer and fight long, expensive and embittered court proceedings.  This is most definitely not the case.  The majority of relationship breakdowns can benefit from the assistance of an experienced, knowledgeable and sensitive mediator.  Even in the most hostile of situations a mediator can help resolve, or at least narrow the issues associated with a relationship breakdown.  However, complicated or messy your finances are or tricky the situation is regarding you children, mediation serves to  unearth the root of the issues , explore the options and allow the parties to take control of theirs and their family’s destiny by allowing them to reach their own workable agreement.

Courts are limited in the Orders they can make.  They rarely show initiative or think outside of the box.  This means that generic decisions are handed down, which often do not entirely work in a specific family situation.  Judges simply do not have the time to sit and explore all of the issues however simple or complicated the matter is.  Mediation is not confined in the same way and therefore provides considerably more leeway and flexibility.

Most importantly one of the biggest benefits of mediation is that couples usually retain a good communicative working relationship, essential if they wish to co parent successfully.  This also limits the desire to publicly berate each other and in turn means for a more amicable and peaceful separation.

Divorce And Mediation

Until recently it was only the well-off who could afford expensive divorce lawyers.  Since the recent withdrawal of legal aid for the majority of family cases, even those less wealthy are being forced to pay colossal legal fees, leaving families already in precarious financial positions, drowning in debt.

The costs relating to divorce and family break up is not the only challenge separating couples have to face.  Long, drawn out proceedings and provocative correspondence is enough to cause even the most amicable of divorces to turn combative.

With the near obliteration of legal aid in family cases, access to justice is being significantly restricted. With an increase in litigants endeavouring to represent themselves, the already struggling courts are forced to spend their time guiding laypersons.  Court timetabling is even more strained and it is not unusual for cases to take over a year, often longer, to reach a conclusion.

The status quo can simply not endure.  Despite being around in this country for well over three decades family mediation is still relatively unknown and an unused alternative dispute resolution.  Mediation allows separating or divorcing couples to reach agreement with regards to the division of family finances and arrangements for their children, regardless of the complexity of the situation. With mediation typically costing between £1,000 and £1,500 this is a significant departure from hefty legal bills, which can easily run into tens of thousands of pounds.

The parties retain control, set their own timetable and achieve tailor made solutions, relevant to their family situation, all in a cost effective framework, with the assistance of a neutral and objective third party. The role of the mediator is to facilitate negotiation, impart knowledge, ensure that both parties remain on an equal footing and that discussions remain constructive. The mediator will also walk the parties through the agreement, making sure it is practical.  These ‘test drives’ provide invaluable foresight and allow for refinement, ensuring workability at a practical level, often preventing future difficulties.

Although mediation is not appropriate where there is ongoing abuse, it can be used very successfully in even the most difficult cases.  One example is the all too common problems faced by many women (and men) when it comes to the halachic requirement of the Get.  It is common for intransigent husbands to be advised to “hang fire” until they receive a settlement beneficial to them. (There are also difficulties, although less publicised, caused when wives refuse to accept the Get).  Another problem is that there is often little, if any, direct contact between the couple, and communications relayed via a third party or by way of often hostile correspondence, becomes skewed and inevitably increases resentment, further aggravating the situation. Of course mediation does not guarantee the procurement of a Get.  However, if at the onset of impending difficulties, the parties are given the opportunity to discuss their concerns face to face, in a structured environment, with the aid of a knowledgeable, pragmatic, and most importantly, impartial third party it can often relieve fears and misgivings. This can ultimately lead to a much smoother conclusion of the Get process.

Come April 2014, mediation will become a prerequisite. It will become compulsory for Court applications relating to most disputes regarding children and challenges regarding family finances to be preceded by mediation, or at least an attempt at it.  The courts will require a good reason if mediation is deemed unsuitable..

With the government’s imposed requirement of family mediation, the removal of legal aid for general solicitor’s advice and litigation, coupled with the continuation of legal aid for family mediation, it is apparent that in the rapidly changing landscape of family law, mediation has an invaluable role to play.

This article was published in the Jewish Chronicle on 27th December 2013