A Collaborative Divorce Interview: Clients and their Attorneys

In November 2013, Tyler Nelson and Pamela Nelson of Tampa, Florida, sat down for an interview with The World of Collaborative Practice Magazine.  The Nelsons had decided to Divorce using the Collaborative Process, as they did not want to fight in Court and they wanted to focus on the best interests of their daughter.  Tyler was joined by his collaborative attorney, Adam B. Cordover, and Pamela was joined by her attorney, Joryn Jenkins.  The interview was conducted by carl Michael rossi.

You can find the full interview at The World of Collaborative Magazine, and you can find excerpts below.

Tyler: A child needs her mother and father, even if they’re not together…Pamela was the one who found out about the collaborative process and told me about it. You know, you’re always going to have some kind of fear. Is this going to work out like it should? What is everyone going to have to do to make this work out? But as soon as I spoke with Adam about everything, all of my fears were gone. He explained everything and the way it was going to work, how it was going to work. I’m pretty sure Pam felt the same way, as soon as she spoke to her lawyer, she probably went through everything. That’s the one good thing about our lawyers, that they explained everything that was going to happen before it happened.

Pamela: Not everybody knows about collaborative divorce, yet. We really didn’t know until it was explained to us. It was a better process for us, rather than go to court and fight.

Tyler: Everything that needed to be addressed, has been addressed…Everything that we wanted to agree on, we did, and everything that we wanted put down on paper, it was.

Pamela: We also have different visitation rights with our daughter. More than, likely, other people have. We already had that situated, and we just needed to put it on paper. It was kind of different than normal people, where they only see their kids every weekend. We do our schedule every week, and we split the holidays. We had to work that out, and put that on paper.

Pamela: The judge actually said that she agreed that we were doing it the best way and that we were dealing with the divorce in a good way. Instead of people fighting and it being a bad thing, it was actually a good situation.

Adam: It was interesting that, at the end of that final hearing, Tyler and Pamela had their pictures taken with the judge. It was described afterwards as being not so much like a divorce setting, but strangely enough kind of like a wedding setting. They had their picture taken with the officiating person. Judge Lee was fantastic and was praising Tyler and Pamela for dissolving their marriage in a way where they keep their focus on their children and not on fighting. To divorce in a way that
was in the best interest of their daughter.

Joryn: I can’t remember doing another divorce where the judge congratulated the parties afterwards, and I’ve been doing this for thirty years.

Tyler: (regarding an interdisciplinary team) They told me about the financial manager [Monicas Ospina, CPA], and she was great. So was the psychologist [Jennifer Mockler, Ph.D.], she was great. They were all great.

Pamela: [The financial professional and mental health professional] were very helpful. They helped us with our tax returns, to see who should file for dependency exemptions to get the most out of it. And the mental health professional helped us stay on the same page with our daughter to make sure that we were doing the right thing. The psychologist made sure we were on the same page in how we were raising our daughter and determine what’s best for her.

Pamela:  (regarding the collaborative process) There’s no arguing, you know, there’s not really fighting or going back and forth or going to court or having the records be there out in public. There’s more privacy. I would definitely recommend it to anybody considering divorce.

Tyler: I have to agree with her…If you go and do the collaborative divorce, you have a lawyer there…They are not trying to make us fight. They are just there to write down what we want, and that’s the best thing about collaborative.

Tyler: We all sat down and talked. There was no arguing.

Pamela: The professionals worked around our schedules instead of us being court ordered to go to court on certain times and dates.

Pamela: (regarding going to the state-mandated parenting class) Everyone else was crying and hated their ex and wanted to kill them and I was like “well,
we’re friends, and everything is good.”

Tyler: “If anybody is thinking about doing a divorce, they should look into a collaborative divorce instead of jumping into it and going to court and fighting.”

Adam: “What I found excellent about this process and this couple, as opposed to the court-based divorces that I generally go through, is that when we were sitting around the table together with the mental health professional and financial professional, and we were talking, we weren’t just talking “civilly.”  We were talking in earnest.  We were actually just joking around at a few times and able to communicate in ways that you just couldn’t imagine doing in other divorce processes, even at a mediation table when there is the threat of litigation.

Joryn: “It is a much more protected environment, I think. It freed me up, and I’d like to think Adam, as well, to feel like we were teammates. We didn’t have to be adversaries, even though we were both representing different interests.”

Adam B. Cordover, Joryn Jenkins, Monica Ospina, and Jennifer Mockler are all members of Next Generation Divorce, formerly known as the Collaborative Divorce Institute of Tampa Bay.  Next Generation Divorce is made up of professionals dedicated to respectfully resolving family disputes.

Referrals to Family Mediation are Rapidly Declining

There are many reasons for the introduction of mediation into a legal matter. In addition to finding suitable alternatives for childcare and financial arrangements, family mediation can help to prevent long winded or drawn out court sessions.

The government introduced mediation as a vital part of the legal family process in an effort to abate those people concerned that the removal of legal aid would cause huge problems for the family courts, leaving them massively overworked and the clients suffering.

However, recent evidence suggests that the referrals to these mediation sessions have in fact dropped. Official statistics obtained by the Law Society Gazette show that the number of family mediation referrals fell by an average of 26% for the period April to June 2013 when compared with the same period in 2012.

The Reasons

Whenever a significant pattern or turn of events is records, then it stands to reason that experts will attempt to find a reason for the pattern.

In the case of mediation services throughout 2013, it is worth commenting that legal aid for private family matters (such as divorce or child contact) was removed as part of government cuts as of April this year.

Whilst Legal Aid is still available for mediation, for many other matters, it may not be applicable and whilst many of the referrals for family mediation Southampton might come from solicitors, if their numbers have also dwindled due to a lack of public funding, then it stands to reason that the number of clients they are able to refer for mediation would also drop significantly.

The Solution

As one of the government’s biggest ideas, it’s unlikely that people including legal practitioners will be able to forget that services such as Lamport Bassitt family mediation services exist altogether. However, a solution must be found to the low numbers.

In one case, there is the prospect that as of January 2014 family mediation will be compulsory. What this means is that any party wishing to start legal proceedings in the family court will not be allowed to do so until they have attended a MIAM, the name given to a Mediation Information Assessment Meeting. However, as much as this may be a step in the right direction, practitioners and legal professionals have expressed concern that this could be too late as many of the mediators who would provide the services would have gone out of business by then as a result of the lower numbers of people attending mediation.

A further suggestion comes from Lord MacNally in his March 2013 speech when he suggested, even prior to the release of the figures that mediators themselves have a large part to play in promoting their services to the legal profession and building relationships with firms of solicitors. He said, “I am looking to you, the family mediation profession, to bring family mediation into the mainstream as the first choice for families to help them make their arrangements post separation – and not just because they have to. Regardless of your background, mediation, the law, or social work, you can bring this about.”

If you require mediation services visit www.lbmediation.co.uk for more information about Lamport Bassitt Mediation Services.

The true cost of divorce in the UK

It is difficult to work out how to approach an article about the true cost of divorce in the UK.

For example, it would be possible to spend time discussing the emotional cost on both parties (as well as other people who might be affected, including any children), with this emotional cost generally increasing in line with the breakdown in trust and communication that is often associated with drawn-out legal disputes relating to a divorce.

It would also be possible to consider this from the perspective of the financial damage that is caused to a couple when they decide to separate, resulting in them needing to spread their assets and income much more widely in order to pay for 2 houses and separate lifestyles.

Each party to a divorce as also likely to have a view about how those assets and income that they consider to be their “own” ending up being shared with the other person, thus resulting in what they perceive to be an unfair cost. For example, any money from a recent inheritance might need to be shared with their spouse as well as part of their future income even after a divorce has been finalised.

Whilst all of the above issues are very important ones to examine when considering the true costs of a divorce, the aim of this article is to focus purely on the actual costs associated with the divorce process itself as I feel that these are often very unclear when the divorce process is started.

Part of the problem with addressing the issue of divorce costs is that in some ways this is similar to trying to establish the length of a piece of string as it is possible to spend anywhere from hundreds of pounds to tens of thousands of pounds on a divorce. To understand this, I will try to examine some typical scenarios for managing the divorce process:

1. DIY divorce

Whilst the removal of most forms of legal aid has essentially ended the possibility of a government-funded divorce, it is still possible to run the divorce process yourself. This will mean that the only costs associated with the divorce process are the court fee (which went up in July 2013) of £410, that now covers the full divorce process but that needs to be paid at the start of the process, and some minimal photocopying/postage costs. Whilst it is always advisable to consider whether independent legal advice would be appropriate, especially when there are children and complicated financial issues to discuss, there is no reason why someone who is comfortable with filling in forms and reading guidance notes should not consider a DIY divorce as an option if saving money is the priority and a very helpful government website can be found at https://www.gov.uk/divorce/overview

2. Online divorce websites

In recent years there has been an explosion in the number of companies offering to run the admin side of the divorce process via online websites, with some of these offering a divorce from as little as £37, although you will of course need to pay the £410 court fee and, if the divorce process does not go through as smoothly as hoped, you will then need to decide who to turn to for advice. Whilst I have had a number of clients who have used these websites with apparent success, this is only once the divorce process itself has been agreed in mediation, and it is important to consider whether you want to put something as important as a divorce in the hands of a faceless website rather than choosing to undertake a DIY divorce or instructing a solicitor to manage the divorce for you.

3. Fixed fee divorces

There has also been a growth in recent years in fixed fee divorces being offered by solicitors and it is likely that the competition in this area will become even fiercer in the coming years, thus leading to further reductions n the fixed fees. The advantage of these fixed fee arrangements is that you have some level of transparency with the fees involved but you will need to make sure that the £410 court fee has been included and check how the costs are likely to change if the divorce process is less straightforward than hoped e.g. if the other party defends the divorce or does not engage in the divorce process. If you choose carefully, then you should be able to find a suitable solicitor to process a straightforward divorce for somewhere between £1,000 and £1,500 including court fees.

4. Open ended divorce fees

When you instruct a solicitor to run the divorce process that is not on a fixed fee basis,  it is vitally important that you ask for clear guidance about costs and that you ask to be updated if it looks likely that the initial costs estimate will be exceeded. Failing to do this will leave you open to running up bills of thousands of pounds as your solicitor writes letters, makes phone calls and runs up additional costs at an alarmingly high rate, especially if there is any suggestion that the other party (0r their solicitor) is not in agreement with running the divorce process the way that your solicitor wants to run it. Ultimately, this could result in a contested divorce that costs each party tens of thousands of pounds,

Whilst the general examples above give a flavour of the choices that you have when considering a divorce and their respective costs, the big problem here is that all of these choices are designed purely to result in a divorce, thus meaning that there are often issues relating to the caring of any children that are unresolved.

Also, it needs to be understood that, unless a separate application is made for finances to be considered, you will not have resolved any issues relating to the finances, such as the ownership of the family home, the division of pensions and whether or not there should be future maintenance payments from one party to the other. Failing to address these issues at the time of divorce means that the window for one party to apply for a finance order remains open for many years and can lead to punishing legal bills in the future, not to mention the fact that it is likely that one or both parties will be in a financially vulnerable position without a court order to enforce any financial agreements that might have been reached either explicitly or implicitly.

It is therefore vitally important that you ensure that the finances (and children’s arrangements) are carefully considered during the divorce process and it is here that the true costs of divorce start to emerge. It is extremely difficult for the parties themselves to properly address the finances as the laws relating to finances are complex and there are many pitfalls to be avoided, with it being likely that the end result will either be one that is highly favourable to one party or one that damages the finances of both parties. It is also extremely difficult, if not impossible, for these issues to be dealt with by any online website or by any fixed fee package, as each situation will be unique, leaving just the option of open ended fees with solicitors and it is here where the true costs of divorce will become apparent. Some fortunate people who choose their solicitor carefully may receive all the advice and assistance that they need for a few thousand pounds each but there is a risk that the bills will exceed £10,000 per person and potentially go a lot higher, especially if any court intervention is required.

Of course, this is where family mediation can and should play its role. It should be possible for a suitably trained and experienced mediator to guide both parties through the divorce process (but with the parties completing their own paperwork or using one of the other options above once the divorce process has been agreed in mediation) and to, in the vast majority of cases, assist them to reach agreements about the children’s arrangements and the proposals for a full financial settlement, at a fraction of the cost that would be incurred between solicitors. It is likely that both parties will benefit from receiving some independent legal advice in parallel with the divorce process, as well as there being a need for any mediation proposals to be turned into legally binding agreements (or court orders) by a solicitor, but these legal costs should be comparatively very small.

Whilst each case is going to be different, from my experience it should be possible for all of the issues to be addressed properly within the mediation process for somewhere between £500 t0 £1,500 per person, with then just the court fees and some specific legal costs to add to this, giving a total cost of somewhere between £1,000 and £2,500 per person for the full process (but with there being additional costs involved if financial advisers or other experts are instructed during the process). As a mediator, I am aware that these costs are still significant for most people but I am also very aware of how much money will have been saved by both parties if they are able to reach agreements via the mediation process. I hope that this article goes some way to help others to become aware of the potential costs of divorce and to then enable them to make informed decisions about how to approach a possible divorce in the future without suffering from large legal bills or other unexpected and unnecessary costs.

Thank you for taking the time to read this post and I look forward to reading your comments.

 

Euan Davidson

Family mediator

Godalming Family Mediation

www.godalmingfamilymediation.co.uk

Is family mediation right for me?

Family mediation is a useful alternative to the courts for divorcing couples. It can save time, money and stress, whilst providing an out-of-court solution that both halves of a couple agree is fair.

The government has thrown their weight behind this solution, although they have stopped short of making it compulsory. Nevertheless, it is proving to be an increasingly popular method of sorting out disputes surrounding custody, finances or the division of assets.

What is family mediation?

Family mediation involves both halves of a couple attending meetings with a professional mediator. In a calm and relaxed environment, the three of them will thrash out the terms and conditions of their divorce.

Professional mediators are trained to be completely unbiased and are able to offer useful advice which can prevent couples from having to go through the stress of a courtroom battle.

If a couple is able to agree terms through mediation sessions, they will be drafted into a summary for the couple’s solicitors to run the rule over and, ultimately, a legally binding document can be produced.

Mediation sessions allow divorcing couples to separate their assets at a much cheaper cost. It can also speed up the divorce process quite dramatically. The government is happy for court schedules to be freed up and separating couples are generally over the moon if their divorce is made quite a bit easier.

Limitations

Unfortunately, family mediation is not for everyone. Both halves of a couple have to agree to attend mediation sessions and be willing to listen to their mediator’s advice. Those who are too stubborn to do this will be unlikely to come to an agreement and are ultimately wasting their time and money. Cases which involve domestic violence or heavy drug use are unlikely to be suitable for mediation sessions.

It’s also worth noting that mediators are unable to offer legal advice, meaning it is often appropriate to seek help from a solicitor throughout the case. This ensures that both halves of a couple understand all the topics that are discussed and are fully aware of the implications of agreeing with the mediator.

If either half of the couple is looking to get one over on their spouse and ‘win’ the verdict, then mediation is unlikely to prove effective. These sessions are only for those who are looking for an amicable divorce.

The future

One of the major criticisms of family mediation is that it encourages those who would probably clean up in the courts to settle. For some, this isn’t necessarily a bad thing. It would appear that this was a boundary to making family mediation compulsory.

Nevertheless, family justice minister Lord McNally is adamant that mediation will play an even bigger role when settling family disputes in the future.

In 2013, he told a Family Mediation Council conference that their “time is now” and that they have a “once in a generation opportunity” to raise the profile of their profession.

So, regardless of whether it is made compulsory, it could be a safe bet that we could witness more and more couples divorcing outside of court in the future.

Exploring mediation – you don’t have to endure an ugly separation

If you’ve decided that divorce is the only way forward for your relationship, but are struggling to convince your partner/ex-partner to feel the same way, don’t panic – it doesn’t mean you have to endure a really ugly separation. You’ve probably already consulted with one of the divorce lawyers Farnham, Glasgow or wherever you live has to offer… why not talk to them about undergoing mediation of some kind?

Mediation sounds as if it might be scary, but it’s really not. It can do wonders for couples who perhaps aren’t entering into divorce with the same views; maybe one person doesn’t want to split up, or is determined to make the process as difficult as possible. At best, allowing a neutral body to help you air your views could help persuade the other person that this is the best route forward. At worst, it could at least make the process of splitting assets and custody of children a little easier.

So, what else do you need to know about mediation?

The mediator
Typically, the person assigned to mediate your case will be a trained, non-biased negotiator; an expert in viewing the facts and helping you both find the best route forward. He or she will know the full details of each person’s case and their feelings, but will have no strong leaning towards either party. If there are financial details to be worked out, they will have full access to those too; helping them help you find a path that keeps you both financially stable – as far as possible, anyway.

Mediators can also help both sides see the benefit of opting for a fair, well-thought-through custody agreement; explaining that it’s about what’s best for the children, ultimately. They are experts in tackling commonly-held arguments, such as: “Well, I brought them up whilst you went out and worked…”, or “Well, I’ve paid all of the bills for the last decade…”; something which can prove invaluable during such a painful process.

Will it work for me?
If you’re struggling through a difficult divorce, it’s probably a good idea to enter into mediation. It will help you both reach mutually-agreeable terms; something which sending lawyers’ letters back and forth can’t always promise. Dealing with each other through your legal representatives can cause anger and resentment; feelings which will only made the process a lot harder. Instead, mediation forces you both to sit in the same room and hash out any problems. Often, you’ll find that it’s a lot harder to sound off or get really angry when you’re sat in front of each other. You may be able to approach the situation with a clearer head; especially when you feel supported by your mediator.

Is it confidential?
Anything said in front of your partner/ex-partner and the mediator is entirely confidential. The mediator is not at liberty to pass on any information to a third party legal representative unless you give them strict permission to do so. What’s more, anything you say in the presence of your mediator cannot be used in court as evidence against one party. There’s only one real exception to this rule: if the mediator believes either of you or any of your children are in danger as a result of any anger you may feel, then they may deem it necessary to stop proceedings and inform the appropriate body (i.e. the police).

Arbitration and Mediation Services (Equality Bill)

The following is a guest family blawg post regarding the Arbitration and Mediation Services (Equality) Bill.

There is a common misconception amongst people, within the South Asian community, that Islamic marriages conducted in this country, are valid under English law. This is not correct. The marriage will only be valid if there is a person within the establishment where the Islamic ceremony takes place, who is authorised to conduct a civil ceremony at the same time and the establishment is registered with the local Registry Office as being an authorised body that can issue the recognised marriage certificate required under English law. A valid marriage certificate can be easily identified as it is in a prescribed format, on green coloured paper.

If the above requirements are not fulfilled, then unfortunately the Islamic ceremony will not be recognised as being a valid marriage under English law. In those circumstances, the parties to the “marriage” will not have the right to make a claim against the other under matrimonial law, and will have to rely on the limited and less generous provisions, afforded to cohabitees, based on principles of trusts, which generally require evidence of financial contributions to the assets that are being claimed, or provisions under Schedule 1 of the Children Act, if the claim concerns financial provision for children.

In many cases where there is only an Islamic ceremony, and no valid marriage under English law, the parties are often encouraged within their communities to mediate amongst their communities, through the use of community elders or members of their own family. They are in many instances encouraged to make use of Sharia law arbitration tribunals operating according to religious traditions. However, this may not be the best option for them as the rights afforded to women under Sharia Law may not be as generous as their rights under English law. There has been some concern that some arbitration tribunals, including those operating Sharia law principles are applying principles which go beyond their legal limit.

A bill has been proposed by Baroness Cox, the Arbitration and Mediation Services (Equality) Bill, which highlights the misuse of equality within the arbitration and mediation services. The main proposal of the bill is to highlight and address the current discrimination which is in force in relation to women who are using arbitration or mediation specifically those within the Asian community. The bill therefore has two main aims:

–          to prevent women from receiving unjust treatment;

–          to prevent any alternative system being established in England and Wales with a potential prison sentence for those claiming to do so.

The bill is not aimed at a specific religious group but at women in general. It is intended to protect women who are and can be discriminated within the legal system.

The main proposal of the bill is that arbitration through a tribunal system that is not recognised under English law, should not deal with family or criminal matters. A concern is that issues such as legally recognised divorce or custody of children are being discussed and often decided at tribunals rather than through the courts.

The bill also makes it clear that any discrimination specifically sex discrimination laws apply directly to arbitration tribunal procedures. The proposed bill is much narrower as it relates directly to three specific areas:

–          treating the testimony of a man as worth more than a woman;

–          preferring a male heir in inheritance rights ;

–          preferring a man over a woman in property rights.

This aspect is specifically designed to address the issue of Sharia law. Traditionally, within Sharia law, the property passes to the sons, not to the daughters, and the daughters’ inheritance is normally half of that of the sons.

Furthermore, the bill seeks to create a new criminal offence. The proposal is that an offence will occur where anyone “falsely purports to be exercising a judicial function or to be able to make legally binding rulings which ought to be decided by criminal or family courts”. The aim of this is to prevent religious or community bodies from operating in lieu of public authorities.

The bill also expands the public sector equality duty. Public bodies will therefore be required to inform women that they will as a result of the marriage not being recognised in English law have far fewer rights. As a result of the lack of legal recognition, there is a risk that it could lead to polygamous marriages being performed.

An amendment is proposed to the Family Law Act 1996, by inserting a clause that a negotiated agreement may be set aside if one of the parties to the agreement did not genuinely consent to it. A “negotiated agreement” means an agreement which has been reached as the result of any form of negotiation, other than mediation. The aim of this is to provide protection for vulnerable parties.

Another area which is addressed by the bill is domestic abuse, which occurs within society quite frequently and is a concern amongst all communities. In most cases, the person suffering from the abuse is very vulnerable and rarely has the courage to stand up the abuse being suffered. Often, it remains unreported and if it is reported to the police, there is pressure by family members to withdraw the allegations. One of the proposals of the bill is aimed at amending the Criminal Justice and Public Order Act 1994. The emphasis of the amendment is to prevent intimidation of those victims of domestic abuse who are assisting in the investigation of that offence or if they are a witness or potential witness in the proceedings for that offence.

The implementation of the bill will bring England in line with various other countries in the world such as Canada and Australia that have outlawed religious arbitration in the legal jurisdiction. Overall, it is aimed at promoting equality between men and women within the arbitration process but also to ensure that there is one legal system in place for issues regarding family and criminal matters.

This guest post comes from Claim Today Solicitors

Family Law Mediation and Mediators in Scotland

Guest blawg post by Gavin Ward as posted to WardblawG

On Wednesday 30th March, I attended a Relationships Scotland event, hosted by HBJ Gateley Wareing in Glasgow and attended by family law professionals across Scotland. The event was of particular interest given the recent review of family law in England and Wales, one element of which concerns the fact that mediation for divorcing couples shall, as of 6 April 2011, be compulsory prior to them attending Court, subject to limited exceptions. For further information on this see a blog post by a family law firm in Liverpool. While mediation for divorcing couples is not yet compulsory in Scotland, it is becoming more widely available.Relationships Scotland Image

What is Parenting Apart?

Parenting Apart groups give parents the skills and confidence to communicate with their children about their separation or divorce in child-friendly language. Importantly, parents get the chance to chat with others going through the same as them. Groups are hosted by two family mediators giving parents the chance to speak to a qualified professional about any issues around parenting their children or their relationship with their ex-partner following their split.

Key Speakers at the Event

Although I have seldom practised family law myself (although I do now work with family lawyers), I still found the event very informative with speakers conveying ideas with clear expression.

Speakers included the following people who should be contacted should you wish further information on any of the topics discussed:-

– HBJ Gateley Wareing’s family law partner, Shona Templeton, who set the scene, exploring the changing face of collaborative family law within Scotland;

– Mark Stalker, who is a service manager with Family Mediation South Lanarkshire. A former solicitor, Mark discussed the the impact of the Parenting Apart project throughout South Lanarkshire;

– National Development Manager with Families Need Fathers, Ian Maxwell discussed how fathers can become involved in the collaborative process. I would also add that I met one of Ian’s colleagues, John Forsyth, who is a support and development worker with Families Need Fathers and is contributing greatly to the Scottish family justice system; and

– Stuart Valentine, the Chief Executive of Relationships Scotland, who explained how Parenting Apart fits in to the wider national picture of family support.

Further Information

For further information on Relationships Scotland and their work, see Relationships Scotland’s Blog here, their twitter account here and watch the video below.

If you have any specific queries on family law in Scotland, get in touch via the contact a solicitor form at the top right of this page.