Austin Chessell

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How to Generate Extra Income as a Family Lawyer by Becoming a Family Mediator

Published on
Austin Chessell www.thedivorcemagazine.co.uk
Austin Chessell

Legal Aid may have gone for a lot of Family and Children legal matters but there are still other avenues to consider to complement your Family Law background.

In this article Austin Chessell from FAMIA will share his experience of how to move into Family Mediation and some of the challenges and liabilities he faces as a Family Mediator.

Shifting the Weight of your Experience:

What training, soft skills and otherwise, do you need to develop as a family practitioner in a post Legal Aid Sentencing and Punishment of Offenders world.

I have been involved in the field of Family Law sector since 2005.

In 2010 I wanted to not just work as a Family Solicitor.  I wanted the challenge of working with separating couples not just individuals.  I wanted to work with separating couples that focused on the families’ interests rather than having fixed positions.

I looked into how this could be achieved and decided to train as a Family Mediator.  A lot of Family Solicitors or Counsellors move into the field of Family Mediation.

Five years on I am now doing more work as a Family Mediator than as a Family Solicitor.

The foundation training costs around £2,500. If your firm is not willing to pay this then you might wish to consider funding this yourself and then being reimbursed when you start to see clients.

Once you have started to mediate then you can build on your mediation knowledge. A lot of the families I work with have an international element to their issue so it is important to keep up to date in this area.

If you enjoy working with children then you should consider doing the Direct Consultation with Children course.

Once you complete your accreditation you may want to be a supervisor and undertake Professional Practice Consultant (PPC) training.  I completed the PPC training last year and I am working with several supervisees who are working towards accreditation.

An Out-of-court Options Update

I am working with several families at the moment in mediation where they feel that communication has broken down and also one or both of them feel that there is no trust.

The first session was used for the separating couples to discuss strategies on how communication and trust can be worked on and improved even before we started to discuss childcare and financial matters.

becoming a Family MediatorThe courts are becoming aware how important a role Family Mediators can play in helping to resolve family matters out of court. I am involved with schemes at the Central Family Court and Barnet Family Court where, for cases having the first hearing, the courts are trying to encourage the separating couple to try mediation if both clients are willing and the matter is appropriate for the mediation process.

I am pleased that I went on an online mediation training course with Stephen Anderson. I am getting more and more clients where one client is not based in London. I have used Skype for clients.

Last month I did a Skype mediation for a client based in Ireland who had a disability and another case where a mother lives in Hong Kong to focus on financial and children matters. Make sure you do a test Skype mediation call before the actual mediation if you are doing a Skype mediation session.

I notice more recently that Solicitors are looking at ways to regularly work with mediators. I am part of the scheme with Dialogue First where clients choose this process. The clients have a Solicitor assigned to them. The clients can then seek legal advice from their Solicitor after each Mediation session.

Clients come to mediation having a general knowledge that if they can resolve matters in mediation it is generally a cheaper, quicker and less adversarial process than going to court. The last few years clients seem to be more informed of what mediation is and how it works before I meet them.

If mediation does not resolve on every matter then there is the possibility for the matter to be referred to arbitration if both clients want this to happen for a binding decision. I am looking forward to discussing Family Mediation and Arbitration with Charmaine Hast from Wedlake Bell on 16th March at the Solicitors Journal live event.

 The Unbundling of Services: Challenges and Liabilities

In mediation you ask screening questions with each client at the start of the process to try and establish which cases are not appropriate for mediation.

Recent examples of mediation matters that have not proceeded are where one client to the mediation process did not want to make a full financial disclosure of their assets and the other client believed that some assets were being hidden.

Becoming a Family Mediator

It can also sometimes be a challenge where one client wants to see you for a shortened Mediation Information Assessment Meeting (MIAM). If a client has attended a MIAM before with another service then I may do a shorter MIAM but if it is a client who is new to mediation I explain that most clients I see for a MIAM to do it properly takes around 45 minutes to an hour.

Some mediation cases where Lawyers are present, it is sometimes a case of if the clients need some space with just them and the mediators and no Lawyers to let the Lawyers know this. You need to do what is right for the clients.

Most of my Family Mediation cases work on the model of 90-minute joint sessions but half a day and full day mediation sessions are possible if the clients have a court case taking place very soon.

It can be quite expensive at the start of the mediation journey with the mediation foundation course fee and regular supervision meetings.

It takes time to build up a mediation caseload. Find time to create a plan of how many clients you would like to work with and decide what action and networking needs to be done to achieve this.

My plan is always changing but if you have a plan you have something to aim for. Marketing can often take place outside of work hours so if you are attending breakfast events or late night networking, aim to attend events that you enjoy being at. I tend to find having a chat with one to two people works better rather than going round the whole room to aim to speak to everyone, but again you need to find a networking strategy that works for you.

I am now working at a fixed office in Angel at the Business Design Centre for Family Mediation meetings. Five years ago I used to rent rooms in offices over several offices across London. This was good initially to keep the room hire costs down but I found that a lot of time in the day would be lost travelling from North, East and Central London so I now aim to get clients to meet me at one location.

Make sure that you have mediation insurance in place and that you have the right level of cover especially for financial mediation matters.

Other Areas of Law that Family Practitioners could Work in to Strengthen their Skillset

I have been able to diversify my Family Law skill set by undertaking training to become a Collaborative Family Solicitor and Family Mediator.

I want to be known as a specialist Solicitor and Mediator. A lot of clients when they come to you, want to work with someone is a specialist in their area. I think it is harder to get this message across if you work in lots of areas of law.

In Family Law I work within the areas of divorce, finances, children, relocation, pre-nuptial and post-nuptial agreements, domestic violence and child abduction.

In Family Mediation the matters, I tend to cover are how the divorce will commence and who is the Petitioner, childcare, finances, direct consultations with children, grandparents wanting to see their grandchildren and also LGBT families.

Thinking Ahead if you want to Become a Family Mediator

If you are thinking of becoming a Family Mediator do your research.  Make sure that the foundation course you are signing up for will be recognised when you apply for accreditation.

Before you start to mediate you will need to observe some mediations and also do some co-mediation hours. See what opportunities are available for this. I found that I had more opportunities to observe and co-mediate by contacting mediation services outside of London.

Try to find a PPC who you are comfortable working with.

When I started mediating, I found that I had to ask a lot of practical questions and when I started mediating with clients the questions I had were more about dealing with the client and the process. Make sure that the PPC has time to supervise you as sometimes you may need to speak to the PPC urgently.

If you do not have enough cases to be accredited then you might need to consider whether you charge mediation clients less than other local mediation practices or co-mediate on a pro-bono basis with an established mediator.

Once you become accredited a lot more opportunities become available. Getting the accreditation for me has been my biggest challenge as a mediator. It took around two years for me to get the required cases for the portfolio.

If you are from a legal background you may want to consider going on a level 2 and / or 3 Counselling diploma course. I found this course very helpful when writing up my reflections for the mediation portfolio.

I have written several Family Mediation updates for Solicitors Journal since 2011 covering some of the above in more detail. These articles should still be available on the Solicitors Journal website to help with your Family Mediation journey.

About Austin

Austin Chessell is an accredited Family and Child Mediator at FAMIA (www.famia.co.uk) across Inner and Greater London. Austin is also a Professional Practice Consultant.

Austin is a Collaborative Family Solicitor at Feltons Solicitors in Knightsbridge.

Twitter @FamilyLawLondon

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How Becoming a Family Mediator/Professional Practice Consultant (PPC) can Generate Additional Income for Family Lawyers and What to Look for in Choosing a PPC

Published on
Austin Chessell www.thedivorcemagazine.co.uk
Austin Chessell is a Professional Practice Consultant (PPC) and a Collaborative Family Solicitor at Feltons Solicitors

Introduction

At a time when the legal aid cuts are beginning to bite and the Government is trying to free up Court time by requiring Applicants to consider alternative dispute resolution as an alternative to proceedings (e.g. Mediation Information Assessment Meetings or “MIAMs”), some Family lawyers are branching out into Family Mediation to compensate for the drop in fee income resulting from the cutbacks.

In this Article, Family solicitor Austin Chessell explains how he has done exactly that by using mediation in a way which allows him to continue practicing Family Law and provides some tips on how to go about it and progress to being a PPC (Professional Practice Consultant).

 

My Family Mediation journey so far has been very interesting because in addition to my Family Law practice working as a mediator has allowed me to build up a caseload for couples who have decided they want to separate out of court in a cost effective, timely and non-adversarial way. I still represent clients who want to go to court using the traditional route, but this is only part of my caseload. Five years ago I was working solely as a Family Solicitor, but now Family Mediation accounts for roughly 45% of my work.

The entry point to practicing as a mediator is to complete training that is run or approved by one of the member organisations of the Family Mediation Council (‘FMC’). The member organisations are:

  • National Family Mediation;
  • Family Mediators Association;
  • ADR Group;
  • College of Mediators;
  • Resolution;
  • The Law Society.

As explained below, there are several layers of qualification consisting of:

  • Family Mediator – this is the entry level which allows you to practice as a mediator but only on private cases, not legally aided ones. It does not enable you to do MIAMs.
  • MIAM training – this enables you to do MIAMs.
  • Accredited Family Mediator – this allows you to do legal aid family mediations.
  • PPC – this enables you to supervise trainee and qualified mediators.

How to get started

You need to become a member of a Mediation body and choose one of their supervisors (called a Professional Practice Consultants (a ‘PPC’)) who guides you through the process below.

The relationship with your PPC is an ongoing one (even if you become a PPC) and membership of your Mediation organisation needs to be renewed yourself annually and backed up by professional indemnity insurance once you are qualified.

You then need to complete a Foundation Mediation course which takes about two months. Not all mediation organisations provide their own training but there are several third party training bodies. I did mine with Hertfordshire Family Mediation Service. Check with the trainer that the foundation course will be recognised when you write up your portfolio for accreditation purposes.

Having completed the Foundation Mediation training, you need to find mediators who will let you observe their mediation sessions and co-mediate with them before you can start practicing as a qualified Mediator.

You will need 10 hours of co-mediation experience and observe several mediation sessions. You also need to meet with your PPC for four one hour meetings each year. You therefore need to be highly motivated to find a mediation service provider for experience, and network with their mediators to observe their cases and find people to co-mediate with. Only then can you start mediating on privately funded mediation cases.

You will also need to meet continuous professional development requirements.

Legal aid mediation cases require you to be ‘accredited’ as mentioned above. I am based in London and found I got more observations by traveling outside of London to places like Kent and Milton Keynes as the London mediation services seemed to have lots of requests from trainee mediators for observations and I did not want to wait a long time to continue my mediation development.

Choosing your PPC

Becoming a family mediatorChoosing your PPC is an important decision. Take your time to have an introductory meeting with them. Each PPC will have their own style whether it is administrative, educative or supportive or a combination of all three. You are going to need to meet your PPC several times each year and work with them for several months to years if you also plan to prepare a portfolio to become accredited.

Over the past 5 years I have been supervised by 2 different PPCs. Both are from counselling backgrounds. I have found it useful for me to develop by having a supervisor from a non-legal background, although I would not rule out having a PPC from a legal background in future.

When I first started mediating, it was hard to stop thinking like a Solicitor and play the role of Mediator, but it now feels more natural after discussing techniques on how to do this with my PPC. It is important not to give legal advice in mediation sessions as this is not the role of the mediator, but obviously an understanding of the legal background is an advantage.

You will find you get more out of a supervision session if you plan in advance the points that you would like to discuss with your PPC, as the one hour sessions can go very quickly. You also need to make sure the supervision sessions are boundaried to maintain a professional relationship.

PPC’s are also useful as sounding boards to explore if you are ready to do the next stage of mediation training.

After the 10 hours of co-mediation and several observations (in my case I did 5), your organization should recognize that you are qualified to practice as a mediator and be able to work with privately funded cases. In my case my PPC provided me with a readiness to practice document.

MIAM training

If you want to progress to doing MIAMs you need to do a one day MIAM training course. In my case the course was run by my mediation organisation and approved by the trainer and my PPC. Also, you will need your PPC’s written support and be working towards accreditation if you are not already accredited.

The MIAM is a meeting between the client and the mediator to see if there are alternative ways to reach proposals with the former partner rather than going through the Courts. The mediator will explain to the client what the options might be, how mediation works and what it is, the benefits of mediation and other ways of resolving disputes, the likely costs and considering elegibility for legal aid.

As readers will know, MIAMs are a pre-requisite to commencing proceedings for children and financial matters at Court, so it is an obvious work stream for Mediators.

From my experience a lot of clients who come to a MIAM still decide to go to court for their financial or children matters but do come back to mediation after court when the realise that the court does not always have the outcome they want!

If you would like to be able to mediate with children further training is needed (in my case a two day course and a written assignment).

Accreditation

The next level is ‘accreditation’ which allows you to deal with legal aid funded mediations. This is a complex and time consuming process as it requires writing up a portfolio of three cases and satisfying the following checklist to be submitted to the accrediting organisation:

  • Personal training and development plan
  • CV
  • Foundation training certificate
  • Witness testimony from your PPC with his/her recommendations on competency to do solo work
  • Readiness to practice – assessment from your PPC
  • Personal reflective account
  • Case commentaries on three cases.

You will need to write about two completed cases relating to children and financial matters and a third case which can be about children or financial matters.

However, the above will be replaced by a new scheme in 2016. Details can be found at the Family Mediation Council website.

Becoming a PPC

Having become accredited, qualifying as a PPC requires a two-day training course followed by a written assignment to be approved by the course trainer.

Conclusion

It is very rewarding and refreshing to help mediation clients reach agreement out of court. Mediation is also a useful additional income stream for your Family Department.

Once qualified , if you are looking to develop as a Mediator and are not part of a networking mediation group, see if there is a local one, and if not, consider starting one yourself. Ask your PPC who may know if there is a group near to you. I set up the London Family Mediation Group in 2011 and it has been very educational for me to hear stories from a range of different Family Mediators and it is also a good way to keep up to date with developments in the mediation profession.

Good luck with your mediation journey!

 

This article was first published by Solicitors Journal on 11th August 2015 and is reproduced by kind permission.

Austin Chessell is a Professional Practice Consultant (PPC) at FAMIA across Inner and Greater London.

 Austin is also a Collaborative Family Solicitor at Feltons Solicitors and is a member of the Collaborative Pod group Essex Family Solutions.

 Email: achessell@feltonssolicitors.co.uk

 

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“Mapping Paths to Family Justice” – Happier passengers on a well trodden alternative route

Published on
Austin Chessell www.thedivorcemagazine.co.uk
Austin Chessell

It was a pleasure to attend the ‘’New Year…. …New family dispute resolution’’ evening at Farrer & Co in early January focusing on the growing client interest in non-court family dispute resolution for 2015, particularly the findings of the briefing paper ‘Mapping Paths to Family Justice.’

The full report is available online prepared by Professor Anne Barlow (University of Exeter), Rosemary Hunter (University of Kent), Janet Simpson (University of Exeter) and Jan Ewing (University of Kent).

Professor Anne Barlow presented a fascinating paper on the Report’s key findings. Of particular interest to Family practitioners will be that separating couples are increasingly preferring to settle disputes using non-court dispute resolution eg mediation, collaborative law and solicitors’ negotiations. This article picks out key points and critiques them against my own practice and experience.

The briefing paper was a three year academic research project carried out by the Universities of Exeter and Kent which started in July 2011.

It is a national study of around 7000 people which collected data from face to face and telephone interviews with people who had experience of non-court family dispute resolution from both legal aid and private clients and also practitioners.

The central aim was to provide evidence about the public’s awareness, usage, experience and outcomes of the different out of court Family Dispute Resolution (“FDR”) processes.

My caseload for the last four years inevitably includes cases that go to court, but the vast majority of my work now is non-court based. It was really interesting to hear from Anne Barlow what people’s experiences were on the different types of FDR options.

The key findings are:

  1. Gender-balanced co-mediation would address concerns about partiality. Co-mediation was useful in discussions about children disputes but co-mediation is not used often because of the costs of having another mediator present.

I think co-mediation is a good idea and I use this model where there are several indicators from the intake session towards co-mediation e.g. frequently in high conflict, high net worth cases, there are power imbalances and emotionally needy clients.

I often co-mediate with a couples’ counsellor Massy Ellesmere.

Clients seem to like having someone from a legal background and a co-mediator from a therapeutic background. A male and female mediator can help to produce better outcomes in cases where we think co-mediation would add real value to their mediation matter.

The mediators’ tasks can be divided when co-mediations take place. Having a male and female mediator in the room can provide a gender balance and set up a model to counteract any power imbalance. Lisa Parkinson, a Family Mediator, has also commented in her book “Appropriate Dispute Resolution in a New Family Justice System” (2nd Edition) that research shows male and female mediators produce fairer and more balanced agreements.

  1. Into the MIAM (Mediation Information Assessment Meeting) era, we have examples of courts ordering parties to mediate.

I am starting to receive more referrals from courts for cases which the Judge believes people should really be talking to each other about rather than litigating.

Recent court referrals have been for a children matter where the clients could not decide on how to review childcare arrangements by an hour each week or on a financial settlement case where the larger assets had been agreed to be divided at court but the household contents had not been determined and the Judge thought it would be useful for the clients to attend mediation. The clients attended one joint 90 minute session and were quickly able to decide how the house contents would be divided.

  1. Ensure that mediation clients are well prepared before they start.
Mapping Paths to Family Justice
I check with clients early on if they have sought legal advice.

This can include ensuring people are aware of what mediation is. Not a lot of people knew what mediation was before they started the process. Clients commonly learn about mediation from their Solicitor or by attending a Mediation Information Assessment Meeting with a mediator.

I check with clients early on if they have sought legal advice.

It is sometimes difficult now with legal aid being removed in a lot of Family Law areas. Legal clinics such as the Citizens Advice Bureau in Holborn provide 3 visits (30 – 45 minutes) for eligible people which can provide clients with an idea of where they stand legally and prepare them for mediation.

I discuss with clients all of the options open to them. It may be that mediation is not the right process for them, but if they know how each option works they can then make an informed decision about which process may be the best match for them.

I have an adapted Financial Statement (Form E) for the clients to complete. I try to ensure they complete the form as fully as possible and bring the level of detail of supporting documents each client requests because if there are large gaps in their Form E it can sometimes be difficult to progress a financial mediation session.

  4. The voice of the child in mediation

The Report finds that direct consultations with children in mediation rarely happen, but there is definitely an argument that the voice of children in the mediation forum and other FDR processes should be heard more often.

I am trained to mediate with children and have around 3-4 cases each year where the parents agree for me to meet with the children in a separate session and then provide them with feedback that the children want me to give their parents.

I have worked with a British parent who lives outside Europe and its three UK resident teenage sons wanted to know why the parent moved abroad at the end of the marriage and how they could re-establish contact.

I have also worked with three teenage children who had very busy school schedules and wanted to spend more time with their mother but wanted to do more outside activities rather than playing computer games which the mother used to encourage instead of physical activities.

  5.  Mediation frustrations

The Report highlights situations where mediation can break down e.g. one person not providing information, worries about being in the same room as a former partner and power imbalances.

The mediation process may not go into the same depth of financial disclosure as court, but for mediation to work the clients need to provide financial disclosure information to the other person in mediation.

If mediation clients cannot get the financial information they feel they need they may use the court process to obtain it and then return to mediation when they want to start considering financial options for settlement.

I find this is happening more often. Clients may go to court up to the Financial Dispute Resolution (‘’FDR’’) stage but then come to mediation if they feel financial disclosure has been completed and want to avoid a final hearing where legal costs can escalate.

I do some mediation cases on a ‘’shuttle’’ basis where clients are not in the same room. It is a lot slower than everyone being in the same room but in some cases it can work better. Some cases I have worked on started as a shuttle mediation and then change to the same room at the next session when the parties see progress is being made.

If there is a power imbalance e.g. one person does not have a good a grasp of the finances, a neutral third party can be introduced e.g. an Independent Financial Advisor may be present in the joint mediation sessions. Last week I mediated with a Bengali client who was not confident about his English so an independent translator attended the mediation sessions with him with the agreement of the other party.

  6.  Screening in mediation

The Report indicates things that could be done better in mediation. For example there could be better screening for abuse and conflict. A lot of people felt that there was impartiality lacking at times of screening and when there were high levels of conflict the mediator could not control things.

I tend to do my screening with the clients separately by arranging the intake sessions at different times. I know mediators who do intake sessions with the clients together and then see the clients separately for the screening for part of the session, but I want the client to feel comfortable to talk to me without the other person being in the room with them.

  7.  What could be done better?

The Report looks at providing counselling or other therapeutic methods to support people who may be emotionally vulnerable.

Many divorcing clients obviously describe this as a very stressful time. Referrals to a counsellor need to be made sensitively. Some of my clients see counselling as a weakness. Others have attended counselling and found it very useful.

For example a client had a young daughter in Scotland and was unhappy about having contact in a hotel and not at her home and wanted to talk through how she felt with a counsellor. After the sessions the client explained she felt a lot calmer and in a better place. I am quite lucky in that I am a member of the Collaborative pod group (Essex Family Solutions) where there are three to four counsellors who regularly attend this pod. You can get to know the counsellors quite well so when a referral is made you are confident that the client will be treated sensitively and get on with the counsellor.

Conclusion

If you are interested or work in the Family Law or Family Mediation field the Report is well worth a read.  I found it useful to see what feedback clients have provided about the different forms of FDR.

This Report and the subsequent discussions with fellow delegates at the Farrer & Co event made me reflect on my own practice and how I can continue to improve my service to clients in each of the out of court options. Judging from the comments of the majority of the delegates I spoke to, fees are a significant factor in clients’ decision making and deciding which option to use when separating from a former partner and mediation can be one of the more cost effective options to use. However, clients needs to understand how mediation works before deciding if it is the right option for them.

Austin Chessell is a Child and Family Mediator at FAMIA (www.famia.co.uk). He is also a Collaborative Family Solicitor at Feltons and a member of the Collaborative pod group Essex Family Solutions.

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Family Mediation – Divorce Solicitor

Published on
Austin Chessell www.thedivorcemagazine.co.uk
Austin Chessell

When a person is going through a divorce and separation, he/she has a range of needs: emotional needs for support to manage the change and trauma, legal advice about his/her legal rights and mediation to come to an agreement about child care and financial matters to prevent going to the court.

What does a Family Solicitor do?

Family Solicitors work within the field of the law and give advice to individual clients. Most of the time a Family Solicitor takes the history from the client to find out what the dispute may be about. The client is advised what their legal rights are. Legal language may be used but explained in layman terms to the client.

Family Solicitors tend not to have received training on psychological matters. Instructions are taken from the client based on their version of events and what their views are about matters for the children. Advice is given to the client on what will be the best form of action to take.

When financial and children matters are negotiated this tends to be done in writing or on the phone. If matters cannot be agreed or if matters do agree then an application can be made to the court.

What does a Family Mediator do?

Family Mediators meet with both partners from the start of the mediation process. The couple may not want to separate so it is explored with the couple if they plan to reconcile, have a temporary or long term separation.

If the couple do want to reconcile then the couple may be sign posted to couple counselling.

Mediators work closely with Family Solicitors and even more so now due to recent changes for separating couples to attend a MIAM (Mediation Information Assessment Meeting).

If clients want to mediate then they will need to complete an agreement to mediate.  Work with the clients tends to be over several months but there are a few cases that go on for longer than this.

In mediation we tend to focus on what is happening now and do not really look back to the past as much. A lot of the sessions focus on what should happen on the decisions on the children which may be in the form of a parenting plan and what should happen financially.

The goal of mediation is to help the couple reach proposals.

At times you have to be a referee to stop arguments escalating and get the couple to refocus to discuss the issues they have come to discuss. If one client does not feel able to talk then the mediator aims to give them the opportunity and confidence to talk. If proposals are reached then a Memorandum of Understanding and / or Open Financial Summary documents is/are prepared.

What does a Counsellor do?

As stated above, divorce or separation is a traumatic time for couples, and they may need emotional support to manage such a transition.

The Counsellor may counsel one partner on their own or work with the couple if they have done further training to work with couples. If the couple wants to stay together then the goal may be how to achieve reconciliation.

Counselling does not tend to be linked to the legal process but if the client is attending Collaborative Law the Counsellor may be involved in the room with Lawyers.

The counselling process usually starts with a meeting for an initial assessment. Depending on the needs and wishes of the clients, counselling could be long term or short term. This will usually be set out in an agreement between the Counsellor and the client(s).

Regular reviews of the agreement will be held in order to avoid drift or undue dependency on the Counsellor. While the goals of a Solicitor are to give advice to a client about his/her legal rights, the aim of the Counsellor is to facilitate and empower the client to increase his/her understanding into their problems and find solutions to the problems.

About Austin

Austin Chessell is an accredited Family and Child Mediator at FAMIA (www.famia.co.uk) across Inner and Greater London. Austin is also a Professional Practice Consultant.

Austin is a Collaborative Family Solicitor at Feltons Solicitors in Knightsbridge.

Twitter @FamilyLawLondon

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Parents communicate better in mediation than they do in litigation
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Is Collaborative Law Process Right for You? 10 Questions To Consider.

Published on
Austin Chessell www.thedivorcemagazine.co.uk
Austin Chessell

Collaborative law process is where the couple come together with their own collaborative lawyer and discuss matters fact to face.

There are no letters sent.

Each client instructs their own collaborative lawyer and they, the clients and the solicitors sign an agreement not to make an application to court. If no agreement is reached in the meetings then new lawyers must be instructed if the matter is to go to court.

Is collaborative law process the right one for you?  

Here are your 10 questions:

  • Has the relationship totally broken down? If it has not you may want to consider couple counselling with an organisation like Relate to see if any communication difficulties or other matters that have arisen can be resolved without ending the relationship. To locate a couple counsellor or psychotherapist in your area you can refer to the counselling-directory.
  • Has an agreement been made as to how the finances can be divided and how the childcare arrangements will work e.g. during the week, weekends and over the holidays?  If so, then consider working with a collaborative lawyer.
  • Would you prefer to decide what is going to happen to the family yourself or would you prefer for the Judge to make the decision for you? In my experience the separating couple knows what works for them. A judge will be provided with your background situation but what is ordered may not suit either of you.
  • How quickly do you want to resolve things between you? A court hearing can take around 6-8 weeks to get listed while Collaborative Law can work at a much quicker pace as you remain more or less in control of how the time is utilised.
  • Do you want to keep the discussions about the separation private?
  • Do you want the views of the children to play a part in the discussions? Some Collaborative professionals are trained to work with children. They need to have completed a direct consultation with children training, had a CRB check and obtain the written consent of both parents. If you go down the Court route it may be a CAFCASS officer who is appointed to work on the case and there can be several meetings which may not suit everyone’s schedule and it can take several weeks to receive the CAFCASS report.
  • There are legal issues to resolve but also one should not forget the emotional impact the separation can have. Do you want to address the emotional issues too? Collaborative practitioners can work with Family Consultants who can meet you before and take part in the joint meetings to ensure that any hopes and concerns are kept at the forefront of discussions while the Collaborative Solicitors look to aid you with the legal issues.
  • If an agreement is reached would you like to call on the opinion of a financial expert or barrister? This is possible in the collaborative process. It may be one client does not have the same financial or legal understanding as the other client and wants to meet a financial expert or barrister to ensure they are up to speed with what has been agreed and also discuss financial projections or legal implications for the future to check that what has been agreed will work in the long term.
  • Do you want to resolve everything out of court? This is possible with Collaborative Law. It is one of the main principles of this process that you will not make an application to court and if you do then your solicitor would need to stop acting for you. Court can encourage positional stances which may not achieve a good outcome for everyone.
  • Do you want to reality check what has been agreed with your former partner and ensure that it meets the needs of everyone? With children matters this can be important. Even though it may be agreed to separate and live in different households you are still going to need to liaise with each other for future childcare arrangements. Making sure what has been agreed will work can only aid building communication between you which is best for your child.
  • Do you want to reality check what has been agreed with your former partner and ensure that it meets the needs of everyone? With children matters this can be important. Even though it may be agreed to separate and live in different households you are still going to need to liaise with each other for future childcare arrangements. Making sure what has been agreed will work can only aid building communication between you which is best for your child.

The above should give you an indication if Collaborative Law may work and be the right process to follow for you and your former partner if you decide to separate. If you are unsure you can always speak to a Collaboratively trained Family Solicitor who can provide more details about how Collaborative Law works in practice.

Austin Chessell is a Professional Practice Consultant (PPC) at FAMIA across Inner and Greater London.

 Austin is also a Collaborative Family Solicitor at Feltons Solicitors and is a member of the Collaborative Pod group Essex Family Solutions.

 Email: achessell@feltonssolicitors.co.uk

Twitter: @FamilyLawLondon

 

 

 

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family mediation

Family Mediation Process UK: A Fair and Shared Outcome for All

Published on
Austin Chessell www.thedivorcemagazine.co.uk
Austin Chessell
Family Mediator and
PPC

The media has recently been highlighting that Family Mediation is quicker and cheaper than going to court which I agree with but what are the other practical benefits?

Maintaining communication and continuing to co-operate as parents with Family Mediation

If children are involved and are also young it is going to be necessary to still talk to your former spouse or partner for issues such as the start times and end times of contact with your child, contact time during the holidays and special occasions, school activities, medical treatments, future schooling and the way maintenance should be paid.

The mediator is not there to provide solutions as these need to be determined by both of you but will listen to both of the parties and be flexible to discuss what would be best for all of the people concerned.

In one mediation session I have been involved with it came to light that one of the parties claimed they had not been receiving maintenance but the other party had set up a standing order to the wrong account and after this was discovered during the session communication between the parties improved dramatically.

Reducing hostility, bitterness and misunderstanding with Family Mediation

Mediators are not allowed to give legal advice but if the parties are to divorce it can be agreed during the session what fact the Petitioner is going to use in the petition and what the particulars are to be used.

In my role as a solicitor it is amazing at the amount of Petitions which are filed at court and then the Respondent asks for the petition to be amended after it has been issued which incurs a further court fee and the solicitor’s time for amending the petition.

If what is used in the petition is agreed early on this can put relations on a better platform when moving on to discuss the financial settlement and / or children arrangements.

Focusing on the children’s needs for parents to co-operate as much as possible with Family Mediation

Family Mediation Process UK
Family Mediators can help sort out financial matters too

If both parties who are using mediation can’t reach a solution for one of the issues which involved the child e.g. future school being private or public they may agree for the mediator to see the child in a separate session.

The child consultation enables the child to have a voice privately and confidentially to a mediator trained in Direct Children Consultation.

In Court proceedings the Court can ask for a Cafcass Officer to produce a report on the child’s wishes but there is sometimes a long waiting time for to report to be produced.

Avoiding a sense of winners and losers by reaching an agreed solution which have some benefit for all concerned.

Where a financial settlement is being agreed the mediator is there to be neutral and help the parties reach a balanced settlement.

At the same time if there is a particular asset e.g. a pension which one party feels particularly attached to the mediator works with the parties in a creative way so that if one party is to retain their pension the other assets can be divided in a way whereby the other party will receive a greater share of another asset.

For house contents which cannot be divided by agreement I usually ask for the parties to bring a proposed list and then the chattels can be divided in the following session. This often tends to be more cost effective than writing several letters through correspondence or having to return to court to decide on the division of items which can often outweigh the chattels value!

Mediation is not appropriate for every situation. For example where there is domestic violence, a power imbalance or where one party does not want to separate.

Not every mediation will complete the process from the initial meeting to having an agreement drawn up as mediation is voluntary and either party can opt out at any stage but I think that mediation should be attempted before any children or financial application is issued.

Any agreement drawn up in mediation will not be binding but it can then be sent to a solicitor if this is what has been agreed. The agreement can then be draft into an order which can then be filed at court which will provide both of the parties with more legal certainty.

ABOUT AUSTIN

Austin Chessell is an accredited Family and Child Mediator at FAMIA (www.famia.co.uk) across Inner and Greater London. Austin is also a Professional Practice Consultant.

Austin is a Collaborative Family Solicitor at Feltons Solicitors in Knightsbridge.

Twitter @FamilyLawLondon

 

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Family Mediation – Complex Cases

Published on
Austin Chessell www.thedivorcemagazine.co.uk
Austin Chessell
Family Mediator and
PPC

In this article I will talk about mediation with highly emotional clients, how to deal with emotional clients and some reasons why clients may be emotional.

It has been a real learning experience working with couples over the past four years as a family mediator where there are strong emotions between the clients. It is very different to acting for one client as a solicitor.

The hardest part about arranging the mediation can be obtaining the willingness of the person who did not propose the mediation as mediation is a voluntary process.  Explaining to that person what mediation can achieve for them helps persuade them to try mediation.

As mediators we help:-

  1. Turn around family disputes;
  2. Resolve family differences;
  3. Give children a voice if the parents would like their children to be part of the mediation process;
  4. Save clients’ money by avoiding the fees they would incur if the matter went to court;
  5. Keep the dispute out of court;
  6. Work in conjunction with solicitors if clients need advice during mediation and if they need a solicitor to prepare any mediation agreement into a legal document.

A lot of mediation clients want to resolve their family dispute and save face at the same time.  Mediation allows this to happen.

It may have been many months or years since the couple have seen each other. Sometimes in the joint sessions I provide a sandwich or fruit for the couple to eat as it may have been a while since they have sat round the table to have a discussion at a meal. It can help to calm the atmosphere in the room if there is silence while both of the couple are eating before setting the agenda items.

Examples

One client I mediated with explained to me in the intake session that this may be the last time she was likely to see the husband again as there were no children from the relationship and part of her moving on would be not to see the husband again.

The client was upset that the husband had found another partner and wanted to vent her feelings about this in the joint session. As a mediator I would not allow one client to be abusive towards the other but this seemed to help to clear the tension from the wife who was then more ready to engage in the financial mediation session.

Family Mediation - Complex CasesRelocation mediations where there are children can be very difficult for the parent who is remaining behind even with generous holiday contact and travel details agreed.

In a lot of these cases the parents have their own solicitors, travel to the session separately and there is no communication between them outside of the sessions. In some sessions one client can stand up raging and pacing round the room and the mediator has to calmly ask the client to sit down.

When asked by the client why do I care about what happens to the children I have to give a response that remains impartial. It is often easier for the mediator to focus the clients when there are children being talked about to ensure that both parents change their mind set from that of a warring separating couple to one who both want to be parents who the children see are both continuing to follow their caring responsibilities for the children.

In family mediation there tend to be 3-5 joint sessions if children and financial matters are being dealt with. For clients who have a lot of history and deeply entrenched emotions there are several ways of dealing with this.

I work closely with counsellors who have seen clients outside and also been part of the mediation itself. Also if the clients want to discuss the past before looking to resolve the issues then there can be more sessions working on a therapeutic mediation model. However it is made clear to the clients that mediation is a future focussed process and as mediators we are not trained to act as a counsellor or therapist.

A lot of cases are referred to me just days before a final hearing. Family Mediation cases do tend to be done in 90 minute sessions over several dates but there have been some family mediation cases which have been resolved in one day.

Where clients are highly emotional it can be better for them to have time to reflect in between sessions rather than agree to something when time is of the essence which they may regret later. Also if the case is complex it allows time for the clients to obtain legal advice, tax advice and or pension advice if this is required by them.

Shuttle mediation can be useful where clients find it unhelpful to sit in the same room. There have been cases where the clients started mediation in different rooms and agreed on several issues and then came together in the same room for the final joint sessions.

I am happy to work with the shuttle mediation model however it does slow the process down. I can convey the message of the client but I cannot replicate the emotion and also the clients cannot see each other’s body language. Also if the couple have children they are going to need to continue to communicate with each other after the mediation, attend graduations and weddings of the children which is why if the couple mediate in the same room it can be positive for the children.

Dealing with highly emotional clients

I explain at the start of the joint sessions that when one person is talking they should not interrupt the other person and ask them to agree to this. If emotions do become vocalised during the session it is useful to remind them not to speak while the other person is talking.

If the tone of the conversation does become heated it is sometime necessary to stand up and ask the clients to focus on the issues that they have raised.

grounds for divorce

Sometimes it just needs someone to tell the clients to be mindful about what they are saying and not to take verbal swipes at each other. If they have children they would not like their children to see them behaving in this way.

We use a flip chart to document what is discussed in mediation. On one occasion the client wanted to get out how he felt before discussing settlement options so I let the client write on the flipchart his feelings and then also allowed the other client to do this too. We had a short break and then returned to discuss settlement options.

As mediators we are not there to keep secrets so it is best for the joint sessions to see the clients in the same room. However, with some clients if the tension becomes high in the room I have asked to see clients separately for example 10 minutes each and then asked them to continue together. This can help to get the clients to talk again more constructively.

Some reasons why clients are emotional

Every case is different but clients can be very emotional if one client has found a new partner and the other person in the mediation sessions has not.

The clients can also become very emotional if they feel that there is not much trust between them.

Conclusions

Clients may feel that emotions and the difficulty of the issues may mean that mediation is not appropriate. This is rarely the case but the mediator will carefully assess this at the Mediation Information Assessment Meeting.

I would not want to start a mediation if I did not feel confident it would work. There is always the option to co-mediate the case. I am from a family law background and my business partner, Massy Ellesmere at FAMIA, is from a couple counselling background. I have found it really helpful to mediate with someone from a different professional background especially in high emotion cases.

By trying mediation the client may have options available that do not present themselves at court. I have worked with clients where their parents or relatives have offered a lump sum payment to settle a financial mediation which the Judge would not direct at court.

The couple if they got married planned their marriage together; they know their personal circumstances and routine better than anyone else so it makes sense to attempt to resolve the separation together too.

Mediation clients have commented that they feel that they have achieved more in a 90 minute joint session than one year of litigating through the courts which has been an expensive and stressful experience for them. I rarely see mediation clients return to me once an agreement is reached whereas legal clients if they are not happy with a court decision may decide to return to court so there is no closure on the matter.

Often the clients have a lot of the mediation points agreed which they do not realise so as a mediator it is important to summarise and reframe key points that the other client may not have acknowledged or taken on board to ensure the clients keep talking to each other.

The Children and Families Bill being considered by Parliament at the moment is looking to change the law so that Applicants looking to make an application to the family courts for a dispute concerning children or finances must consider mediation first at a Mediation Information Assessment Meeting. A line by line examination of the bill took place on the 7th January 2014 and a fourth day of the report stage has been set for the 29th January 2014.

 

About Austin

Austin Chessell is a highly accomplished accredited family and children mediator and a family mediation supervisor. He is qualified as a solicitor in

2010 and has practised as a Collaborative Family Solicitor since 2013. Austin has meeting rooms in North, East and West London. He also mediates online and is authorised to do legal aid family work. A member of both the Law Society and Family Mediation Council mediation panels, he has also completed a Level 3 diploma in Counselling and works on a voluntary basis for Families Need Fathers.

www.thefamilymediationcentre.co.uk

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collaborative law

Collaborative Law Explained

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Family Mediation
Austin Chessell

Each person who has decided to separate or divorce in the Collaborative Law process has their own solicitor where meetings take place in the same room with the aim of resolving everything face to face.

I find this works better than correspondence and allows the process to cover a lot more ground rather than waiting for a response to a letter.

Each person and the lawyers sign an agreement with one of the important things being that a financial application will not be made to court. Common matters can include children, finances, relocation or all of these matters.


Collaborative Law Explained?

Once each person has instructed a Collaborative Lawyer there will usually be around 4-5 meetings to discuss the issues ‘around the table.’

Legal advice can be given to the parties during this process.

For Collaborative Law to work everyone needs to work towards reaching an agreement on the matters that have been raised and also agree for court proceedings not to be issued.

If an agreement is reached this can be drafted into a court order.

Collaborative law
Collaborative Law has a high success rate

What can you discuss in Collaborative Law?

  • How to separate in a dignified way that will not destroy the family
  • When to tell the children about the separation
  • Your views on the separation and the other persons view
  • Aim to rebuild communication that make have broken down
  • Legal aid
  • Emotions – In this situation a Family Consultant would usually be part of the
  • Is the family home to be sold or will someone and the children remain
  • Relocation internal and
  • Who and when each parent will care for the children and how to co-parent even though the family is
  • Agreeing a financial outcome that looks at the families interests rather than focussing on positions

 

Other Collaborative Experts

In some cases other professionals work with me. I commonly work with other Mediators, Accountants, Independent Financial Advisors and Divorce Coaches where clients feel this will help the Collaborative Process.

 

Does Collaborative Law Work?

Yes Collaborative Law has a high success rate when separating couples come to the meetings when they discuss possible options and outcomes by being prepared to express and listen to the other persons views in an open and free forum.

 

Austin Chessell is a Collaborative Family Lawyer at Shortlands (www.shortlands.co.uk) and Family Mediator at FAMIA (www.famia.co.uk)

Email: achessell@shortlands.co.uk
Tel: 0207 629 9905
Twitter: @FamilyLawLondon

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/

Family Mediation in practice: Case Examples

Published on
Austin Chessell
Family Solicitor and Mediator at Shortands Solicitors

1.    How mediation has helped couples;

2.    When the mediation process has encountered difficulties;

3.    Were those difficulties in mediation terminal or were they overcome in some way?;

4.    The client’s relationship with the mediator.

 

How family mediation has helped couples

“Co – mediation’’ – Case example 1.

A lot of couples attending family mediation like to have two mediators in the room giving a gender balance. From the start the mediation sessions may have a lot of tension in the room and arguments following on from when the relationship ended.  It’s really important that your mediators or at least one of them is very good at dispelling any tension in the room.

We aim to focus the clients’ attention on the issues they have raised in the intake sessions whether they are children, financial or miscellaneous issues pertaining to their family situation. Some of the benefits of using family mediation include:

  • Resolving family disputes outside of court and through mediation is less adversarial.
  • Being in a less informal environment than a court room gives clients the opportunity to make informed decisions themselves.
  • If an order is made at court by the Judge there is a possibility that neither party may like the decision.

 

“Shuttle mediation’’– Case example 2.

shuttle mediation
Shuttle Mediation

When clients cannot bear to mediate in the same room together as in co-mediation, another form of mediation, shuttle mediation, can then be used.  This is where each party is in a different room and the mediator(s) go from room to room working through each issue in turn.

Massy, my co-mediator and I did a co-mediation where there were court proceedings ongoing. The mother was seeking a name change while the father was seeking more contact with two young children. There had been several court hearings before the parties came to mediation. The mother was paying out thousands of pounds for representation at each hearing. The father was representing himself but did not like the adversarial nature of being in court.  At the intake session both parties struggled to be civil towards each other so the first joint session was done as shuttle mediation as were joint sessions 2-3.

A final agreement on the name change and contact was reached in the 4th session but to our pleasant surprise both parties wanted the final mediation to take place in the same room.  

Both parents had realised that after mediation had ended that both would still need to liaise with each other to arrange contact whether this was on the phone or by email and that even at their children’s wedding they are going to need to get along.  The mediation process encouraged the parties to communicate effectively.

“International Mediation’’– Case example 3.

I received an email from a father who was about to relocate with work in Japan.

The mother and father were not married and the child was 6 months old. The father was paying child maintenance which in the mother’s opinion was not enough. The mother was disappointed that the father was not playing an active role in the child’s life while the father was not happy with the fact that no contact arrangements had been made. Both clients were very reasonable and willing to compromise but they felt they needed an impartial third person present to work through when the father could have contact with the child for the four times he was due to return to London each year.

The mother explained what her monthly outgoings were and that even though the father was paying the suggested 15% of his net income for the one child there was a shortfall. When the father could see the figures of the mother’s monthly outgoings compared to what he was paying as child maintenance which I put on a flipchart the father changed his stance.  The father immediately agreed to increase the child maintenance and would update the standing order immediately. I explained it is good if maintenance can be agreed informally.

Parties can approach the CSA if one parent does not want to pay child maintenance, but in future there will be an administration charge for both parties which can be avoided if child maintenance is agreed informally through mediation.

 

Time Saved–Cases generally.

Contact, residence and financial issues can be dealt with through the courts but if these matters go to court for final hearings it could take potentially several years to get a conclusion. In my experience if both parties have mediation sessions regularly and both parties are willing to be flexible about what they seek, mediation agreements can be made in a much shorter time frame. If there are children and financial issues there tend to be 3-5 joint sessions. If it is just child or financial issues then there are around 2-3 joint issues. Joint sessions last for 90 minutes. Intake sessions last for around an hour.

When the mediation process has encountered real difficulties

Child Abduction – Case example 4.

In an intake session it was clear that both parties before they separated were in very high conflict.

The mother had also raised issues that the extended family for the father were making life too difficult for her. Despite this both parties initially wanted to mediate.

The father was having limited contact at a car park or by lifts inside a flat for 15 minutes every alternate weekend. The mother wanted to return to Pakistan with the child while the father wanted to prevent this.

In the first joint session it was agreed that the future contact sessions would take place in a more appropriate venue and that contact would be for longer duration. However, after the first session mediation stopped as both parties could still not trust each other over the child abduction aspect and passport issues were then raised. It was agreed that both parties would return to their solicitors and go to court. In most cases we reach full agreement on all of the issues raised but sometimes it may be that agreement is reached on say 6 out of 8 issues and the remaining issues are dealt with through the court.

 

Financial Disclosure – Cases generally.

Family MediaitonIn mediation some parties want to use the process to decide how the financial assets accumulated from the marriage or cohabitation will be divided.  After the intake session we give both parties a financial form to complete which details all of the assets and debts along with current and future projected income and outgoings. Generally both parties understand and cooperate to give full and frank disclosure before discussing settlement options. However, where one party is convinced that the other party is not disclosing substantial assets the mediation process cannot go any further and it may be that the clients have to use the court process to reach a conclusion.

 

Delay – Cases generally.

Most couples come to mediation wanting to reach a quick solution to their issues. However, some people have approached us to use the process as a delaying mechanism. In these circumstances mediation would not be suitable, particularly in cases where one parent has not been having contact with their children for a long period of time.

In mediation cases where difficulties came about were the difficulties terminal or were the difficulties overcome in some way?

 

Contact – Case example 5.

One couple approached me as a contact order had been prepared at court but it was not defined as to how the weekend contacts and holiday contacts should be structured.

The court order provided that contact should be shared on an equal contact basis. We looked at the work schedule and commitments of both parents and the children. It was difficult for weekends and holiday contacts to be divided equally. It was possible but as the contact would mean a lot of travelling for the children on a Sunday night it was agreed that practically this would not be in the children’s best interests as they would turn up for nursery and school on a Monday morning exhausted.

For the current year 2011-2012 the contact the father missed out on at weekends was increased during the holidays. We also discussed finances in mediation.  It was agreed that the father would look to relocate closer to the mother within the next year so that for the following year 2012 – 2013 weekend and holiday contact could be done on a shared basis.

Men often report that they feel they are being  judged by yet another female in mediation. Do you have any advice?

As mediators we are trained to be impartial whether clients are male or female. As a mediator I am not there to judge the father or the mother but am there solely to help reach an agreement in terms of children contact, residence or how to divide the financial assets from marriage or cohabitation and any other issues such as relocation which is happening a lot more in this day and age.

We do not have telephone conversations with the clients in between mediation sessions to avoid being seen as biased or judging towards one party.

I think that the mediation intake sessions are very important.  It is an opportunity for both clients to assess the mediator to see if they feel they can work together.  In some cases the clients are going to see the mediator for around 6 sessions in total so they need to be comfortable with the mediator.

It is also worth remembering that mediation is a voluntary process so if clients feel that they are not making real progress then they may have to consider other options to resolve their issues.

Austin Chessell is a family mediator at FAMIA (www.famia.co.uk) which covers Inner and Greater London. Austin is also a family solicitor at Shortlands Solicitors (www.shortlands.co.uk) at Hammersmith, London.

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Separation and Children – 10 Points to Keep in Mind

Published on
Austin Chessell www.thedivorcemagazine.co.uk
Austin Chessell
Accredited Family Mediator at FAMIA

If you are separating and you have children you may want to keep these 10 points in mind.

    • Do not criticise the other parent and do not involve children in the argument.
    • Bear in mind the needs of the other parent.
    • Allowing the child to contact the other parent e.g. by telephone when they are not with them and being able to talk openly when they miss the other parent.
    • Before during and after the separation keep in mind that the child may feel confused and have contradictory feelings.
    • Take on board what the child is thinking and listen to what the child wants to discuss but do not hold the child out to make the decision.
    • Acknowledge that the children have their own friends and activities that need to be considered when arranging contact.
    • Remember that each parent may have different parenting styles and the different styles of parenting can complement each other if not dismissed by the other parent.
    • If a regular pattern for contact is agreed stick to this so that the child does not feel upset for a contact being cancelled.
    • As the child gets older remember to be adaptable to their needs which may change.
    • Let the children know that even though you have decided to separate both parents and everyone involved still loves the children and that living in 2 separate households can work.

Austin Chessell is an accredited Family and Child Mediator at FAMIA (www.famia.co.uk) across Inner and Greater London. Austin is also a Professional Practice Consultant.

Austin is a Collaborative Family Solicitor at Feltons Solicitors in Knightsbridge.

Twitter @FamilyLawLondon

 

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Children in Mediation

Family Mediation Services – Children in Mediation

Published on
Austin Chessell www.thedivorcemagazine.co.uk
Austin Chessell
Family Mediator at FAMIA

Direct Consultation With Children (DCC) in Family Mediation Services

Since training to be a family mediator three years ago, several of my children issue mediation cases have led to the parents deciding that they would like to involve their children as part of the mediation process.

How does a DCC work?

During a DCC, the children first have a session with a qualified Direct Child Consultant where the parents are not present and the children are given the time and space in a safe and confidential place to discuss what they would like their wishes and feelings for the future to be.

The wishes and thoughts of the children are then informed to the parents in a separate meeting so that the desires of the children can then be taken into account when making decisions for the child arrangements for the future.

It is important before arranging a DCC session that the parents sign a consent form agreeing for the children to take part in the session.

When Might involving Children in the Mediation Process be Appropriate?

Both parents may feel that their children should be given the chance to have a voice in the future family structure and can play a part in how new arrangements are going to operate. This may help to allay some of the fears that children have about the parents separating.

Children can be asked to have a session with the mediator at different points of the mediation process.

I have been involved in a case when the father relocated to Japan and the three teenage children and mother remained in London. The three teenage children wanted to find out why the parents’ relationship had broken down as this had not been explained to them. The three children had only been having contact through email and wanted to use the session to arrange when they could have direct contact with their father.

In other mediation cases the parents had previously been litigating in court to decide which A-level school the child should attend. When the child attended the direct consultation a school was proposed that neither parent had considered which helped to decide which school should be applied for and avoided further litigation.

It can also be useful to discuss the children’s on-going relationships with the wider family.

Children in MediationInvolving children in mediation will not always be the best option but from my experience of working with children at a contact centre for over ten years most children like to be given the chance to be heard in person.

Parents will be informed before the mediation session with the child that:-

  • The children will not be asked to make the decisions and choices;
  • The mediators respect their parents’ authority;
  • A child will not be seen without both parents’ consent;
  • Parents will be briefed clearly how the mediation session with the child works and the purpose of the meeting before asking if the child would like to be part of the process.

The mediator has to respect the confidentially of the information the child shares with the mediator unless there is a risk of harm.

I often get asked at what age children should be mediating. I personally would find it hard to mediate with a child younger than 8 years old. This really is down to the parents’ view on the child’s capacity to use and understand the opportunity. I have not experienced a situation where a child has refused to be part of the mediation process yet.

For cases that have complex issues I would look to co-mediate the children session.

Children in MediationSome children have preferred to come straight after school while other children have expressed a preference to mediate at the weekend. It is also discussed with the children who will bring them to their session and where the person collecting them should wait. The children are also told when the feedback will be given to the parents and what format the feedback will take.

Meeting with the children will not resolve all of the issues but from my experience has in several cases aided communication at a difficult time. The childrens’ needs are given paramount consideration in the process. A lot of children have liked the session with the mediator as they know the mediator is independent from the family and will not take sides to their expressed views.

The child mediation sessions are not therapy as the mediators are not trained for this but children have commented to me that the mediation session helped them to understand the changes that were about to take place, find their own way to cope with the separation when they may feel that they have to take sides and to express their feelings about the separation. It is important to acknowledge how the child feels and have soft drinks available along with time for short breaks if the child wants this.

If the child wants to have support from people other than their family it can be explored if there is someone at the child’s school or a school counselling service who may be of assistance.

I believe that where it is appropriate children should be given the opportunity to be part of the mediation process. From my experience children do not want to be involved in any conflict arising from separation but would like to help shape their future arrangements particularly on shared parenting issues by voicing their views.

Austin Chessell is a Family Mediator at FAMIA www.famia.co.uk and Family Solicitor at Shortlands Solicitors www.shortlands.co.uk .

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Mediation Matters

Relocation and Family Mediation Matters

Published on
Family Mediation www.thedivorcemagazine.co.uk
Austin Chessell Family Mediator and Collaborative Lawyer

Austin Chessell looks at some of the main principles of the law on International Relocation and discusses how parents can use them in family mediation as an alternative to going to court to help them shape their own agreement on whether relocation with children should take place.

With the growth in cheap flights and increasing employment prospects arising from globalisation, it is becoming more common for separated parents to consider permanently relocating abroad and wanting to take their children with them.

Consent needs to be given by the non-relocating parent for the relocation to take place which is rarely easy to obtain as it inevitably creates further tension between the parents and re-opens the pain experienced during the initial post-separation childcare discussions.

The non-relocating parent often fears losing all contact with the child if relocation happens.

Where relocation is contested, it is worth considering what the main legal principles are which determine whether the relocation should take place and whether consent is best obtained through the courts or by mediation.

In my experience, mediation is often more successful where parents have a good understanding of these legal principles and can then use them to shape their own relocation agreements.

The leading cases which parents need to be aware of are:

Payne v Payne [2001] EWCA Civ 166

This was an unsuccessful appeal by a father against an order allowing the mother (who significantly was the main carer) to remove the child to New Zealand. The guidance in this case is known as the ‘Payne Test.’

The test means that the court must consider whether the proposed relocation:

  • derives from a genuine desire to start a new life abroad (i.e. not being selfishly motivated to cut one parent out of the child’s life)
  • has been well thought out and researched having regard to the practicalities of the situation.

If the application to relocate is deemed to be genuine and realistic, the court must then weigh up:

  • if the opposing parent’s reasons are based on a genuine concern for the future child’s welfare, or if there is an ulterior motive.
  • what effect the relocation would have on the relationship between the parent who is not relocating and the child. The court will also need to consider the extent to which this would be balanced by any new relationships that the child would form in the relocation country.
  • what the impact would be on the parent who proposed the move if the application was refused.

While taking the guidance into account, the court’s paramount concern will always be the child’s welfare.

However, in Re K [2011] EWCA Civ 793 the Court of Appeal ruled that the only point of law from the Payne case was that the child’s best interests must be the paramount consideration of the court. In this case, (unlike Payne) care was shared between the parents.

The court decided that in shared care cases the application should be decided on the facts of each case, the welfare of the child and the statutory considerations which are set out in s.1(3) of the Children Act 1989, often referred to as the ‘Welfare Checklist’.

In Re K a father brought a successful appeal against an order which gave the mother permission to leave and take the children to Canada.

The court confirmed that in the circumstances of this case, the approach followed in Payne v Payne was not appropriate because care was shared between the parents which required a deeper analysis of the impact of the relocation on the child. As a result of this case, a lot of parents may now find it harder to persuade the court that the relocation should take place where there is a shared care arrangement in place.

Payne is only applicable where the relocating parent is the main carer.

Consideration must be given to all of the facts.

Key findings from relocation case law are:

–        The welfare of the child is the paramount consideration and all other criteria should feed into this.

–        In deciding which solution will best meet the child’s welfare, consideration should be given to the guidance set out in the Welfare Checklist where care is shared and to the Payne Test where there is a main carer for the child.

–        Leave to remove applications must be made in a way which does not obstruct contact nor weaken the child’s relationship with the non-relocating parent.

–        The relocating parent must have planned the move having regard to the practicalities e.g. it is better if the move is at the end of the school year rather than in the middle of the school term, having good access to healthcare, immigration laws not being a major obstacle and the non-relocating parent still being able to still have good contact with the child.

–        The court will have regard to the impact which a refusal of the application will have on the relocating parent where s/he is the primary carer e.g. the primary carer feeling isolated and lonely if the move is not granted.

–        It is important in every case to consider what the effect of the reduction in contact time with the parent who is not relocating will be on the child.

–        If the child is an older child then its wishes, views and feelings will carry more weight in the relocation decision.

As a mediator my role is different to when I am acting as a solicitor in that in mediation I can only share the above legal information with mediation clients but cannot advise them.  Parents can then use that information and seek legal advice from solicitors where appropriate to make joint decisions on the relocation through mediation.

In  August 2013, Dr Rob George from Oxford University found in a report called Relocation Disputes in England and Wales: First Findings from the 2012 Study that one-third of all requests for relocation are not permitted by the family courts.

In the current economic climate, parents are questioning why they should spend potentially tens of thousands of pounds on a relocation case involving several hearings when the case can be mediated in a quicker and more cost effective way (especially where a relocation allowance has not been provided by an employer) and, in light of Dr George’s report, may stand a higher chance of success.

Every mediation case is unique based on the client’s circumstances, but the following are issues that commonly arise in international relocation cases which parents (and mediators) need to consider:

  • Childcare time – when should the contact take place and where?
  • Who is booking and paying for the international travel?
  • If the child is young how will they travel?  Will relatives need to be involved to ensure travel can take place.
  • Will contact between the child and the non-relocating parent take place during term time and in what form? e.g. face to face, email, phone or Skype?
  • Making decisions for future education, after-school activities and medical treatments – it may be that the parent who is not relocating wants to visit the school abroad or neighbourhood before any schooling decisions are made.
  • Being provided with copies of future medical records and school reports.
  • If an order is prepared after mediation, will this need to be mirrored abroad? The clients will need to liaise with their legal advisors here and abroad to get this confirmed.
  • If the order is not followed, should the relocating parent provide a legal costs allowance for the parent who is not relocating? There may not be funds for this but in some cases, there may be.
  • Will the parent not relocating have more contact prior to the move?
  • Will the parent agree for the relocation to be for a defined time before returning?
  • Will the children return in the future for their university education? If the children are old enough and the parents agree, the mediator can meet with the children to find out their wishes and feelings on this and then pass the agreed information back to the parents before a decision is made.
  • How will extended family members remain involved with the children?
  • Will the relocation take place in a way that is not disruptive to the child?

I have worked on relocation cases through the courts as a solicitor and through mediation as a family mediator. In my experience, parents communicate better in mediation than they do in litigation as the focus is on collective interests not fixed positions.

If a parent is unhappy with a court decision, litigation will most likely continue with appeals being made, but, in mediation, parents tend to respect what was agreed and rarely look to amend a Memorandum of Understanding.

With Mediation Information Assessment Meetings (MIAMs) likely to become compulsory for all applicants if the Children and Families Bill 2012-2013 is enacted, it would not be surprising if more international relocation cases are resolved through mediation rather than through the court system.

About Austin

Austin Chessell is an accredited Family and Child Mediator at FAMIA (www.famia.co.uk) across Inner and Greater London. Austin is also a Professional Practice Consultant.

Austin is a Collaborative Family Solicitor at Feltons Solicitors in Knightsbridge.

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