Accredited Family Mediator
and PPC
What is mediation worth?
How can you quantify the financial and emotional value of a successful mediation for any given family?
These are surprisingly difficult questions to answer. For me, they are about as impossible to quantify as: How much money has the Thames Barrier saved since it became operational in 1982?
There is no real way of knowing the degree of damage and personal heartache that has not been suffered in the 176 times the barrier has been raised.
In much the same way, there is no real way of measuring how much money and heartache clients who successfully negotiate a fair and workable financial settlement in mediation are spared.
All we can do is to provide some comparative information about the process of mediation against a bitter legal battle. Before providing this info however, I wish to make one caveat perfectly clear.
Mediation is not suitable for all people. There are a variety of situations where the only real recourse couples have is to rely on the courts to assist them such as where there is domestic violence or child abuse. Those cases notwithstanding however, here are some examples of the cost of choosing not to mediate.
Expense: Aviva insurance estimates the average cost of divorce to be £43,998 per couple. By comparison, the average cost of a mediated settlement with us, for instance, is £2,200 per couple
Time: In that same report, Aviva identified the average time to settle a divorce as 11.5 months. By comparison, in mediation we help most couples reach a full financial settlement within 5 weeks of deciding to mediate (assuming couples are able to provide financial documents such as bank statements etc. in a timely manner).
Psychological costs: The psychological costs of a contested divorce is impossible to quantify over that for those couples who use a Family Mediation Council Accredited (FMCA) mediator. It is certain however, that the vast majority of couples who mediate a solution will be able to complete their divorce process at a fraction of the time and costs over a contested legal battle. These savings in time and money will undoubtedly translate into significant psychological savings as well.
ABOUT THE AUTHOR
Johnathan Pease, of New Landscape Mediation, is a highly experienced family mediator with over 20 years of experience working in family conflict resolution both as a mediator and Family Consultant.
A fully accredited BACP psychotherapist, Johnathan holds several qualifications with ADRg – including Direct Child Consultant (DCC). He is an accredited Civil/Commercial mediator, a member of the UK College of Mediators, and an affiliate member of Resolution.
Johnathan’s flexible and pragmatic approach to mediation makes the most of his understanding of interpersonal dynamics for the benefit of all concerned.
As a father of 2 children, and having experienced a family breakdown himself, Johnathan recognises that there are often many layers to the end of a marriage hindering a successful settlement than first meets the eye. Johnathan applies his varied training and life experience to the time sensitive and practical needs of family mediation with consistent success.
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Managing Partner of Parslows’ Jersey office
Anyone who has been through a divorce, or is currently going through a separation will know just how challenging this time can be on all who are involved.
However, knowing exactly where you stand in relation to your children can make this time slightly easier, particularly when it comes to the interim period between separation and divorce.
Whilst every couple prays for an amicable divorce, this isn’t always possible. Disputes over inanimate possessions such as your estate or possessions, whilst unpleasant, do not personally affect those objects.
However, when it comes to your children, this is not the case. Parents may agree that shared residence is preferable when the divorce is amicable, and both parents are willing and able to raise the child or children to the best of their ability.
However, when one parent believes that the other is unfit to carry out their duties effectively, a battle can begin as to who the children will live with.
What do we mean by Parental Responsibility?
Before we look at the issues contained within child custody, we should first look at what we mean by ‘parental responsibility’.
The Children Act 1989 defines parental responsibility as possessing ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’, including the rights and powers over the child’s estate.
For a parent to even consider partaking in a battle for custody, they must understand what is expected of them and what the court will consider them responsible for should they gain sole custody of that child.
Child Welfare
First and foremost, when it comes to any question about your children’s upbringing, their welfare is of paramount importance to the court.
In Article 2(1) of the Children (Jersey) Law 2002, states that ‘when a court determines any question with respect of the upbringing of a child […] the child’s welfare shall be the court’s paramount consideration’. This highlights the court’s overriding desire to protect the child’s welfare above all else.
Before you consider fighting your spouse in court, consider the welfare of your child and what is best for them, as this will influence the judge’s decision.
Considerations Regarding the Child’s Welfare
Determining what is best for the child is not always an easy task. There are a number of ways that a judge can make this decision, and there are multiple clauses within section 1 of the Children Act 1989 that assist a judge in making this call.
The court will not only consider the welfare of the child, but also the following issues:
- The ascertainable wishes and feeling of the child concerned (taking into account his or her age and understanding)
- The child’s physical, emotional and educational needs
- Any harm which the child has suffered or is at risk of suffering
- The ability of each parent to meet their child’s needs
Marriage of the Child’s Parents
In regard to the marriage of the mother and father of the child/children in question, the law clearly states that when a child’s father and mother were married to one another at the time of the child’s birth ‘they shall each have parental responsibility for the child’.
Whilst this responsibility may not automatically relate to sole custody, it does relate to at least a degree of obligation for the child’s welfare in one aspect or another; this could relate directly to financial aspects of the child’s upbringing, emotional support or matters relating to the child’s estate.
This means that if you go to court and do not secure sole custody of your child, you may still be required to support that child in other ways.
Every divorce and/or custody battle is unique, and each one can be extremely challenging for all involved. However, if you and your partner can agree to the terms of your divorce without the assistance of a court, this procedure can occur relatively quickly and easy.
Regardless of how the procedure plays out, never forget the importance of the welfare of your children, and remember to always place their needs over and above any other aspect of the divorce.
About Carl Parslow
Carl Parslow is the managing partner of Parslows’ Jersey office and he has 20 years of experience practicing law.
Carl was initially called to the English Bar in 1996 and in 2003 he was called to the Jersey Bar as an advocate. If you require any additional legal information regarding divorce and you’re based in the Channel Islands, get in touch with Jersey lawyers at Parslows, via their website or by phone at 01534 630530.
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In reading the headlines over the last couple of weeks, one would have thought that it is now settled law that every divorced Mum would be compelled to go out and “get a job”.
This follows the high profile divorce of Mrs W, the estranged wife of a Racehorse Surgeon and the selectively reported comments of the Judge in this case.
As ever, it pays to “let the dust settle” and consider what really happened.
Nigel Winter, Partner in Rawlinson Butler’s Family Team considers the real impact of the decision and why getting advice early should be high on the list for anyone contemplating divorce.
As every marriage is different, so is each divorce and the facts are critical in each case.
Mrs W (51) had been married to her husband Mr W(59) for 11 years and they had 2 children aged 10 and 16, the elder being at Boarding School.
The proceeds of sale of their £1.3million house were duly split and Mrs W was receiving £75,000 per year maintenance.
Mr W was concerned about his capacity to pay ongoing maintenance upon retirement. He therefore sought to have that maintenance significantly reduced.
The £75,000.00 per annum maintenance was for the 2 children and £33,200 of that was spousal maintenance for Mrs W herself. In addition to this Mr W was also paying the school fees.
Last year a Court ordered that the personal payments to Mrs W should taper off over a period of 5 years before ceasing upon Mr W’s retirement. It was this decision that Mrs W was seeking to appeal.
That appeal was unsuccessful and the comments of the Judge on hearing the case have been seised upon in isolation. But it is essential to remember that each case is judged on its own facts.
Critically, the media reports haven’t stated the overall wealth of the parties, merely that they had a £1.3million house.
Furthermore under Section 25 of The Matrimonial Causes Act the standard of living is a factor to be taken into account. It is a reality that people who are wealthy have a completely different expectation of life, which the Courts recognise. Using the house as a guide, they appear to be comfortable but not rich. However that may not be the case and provide an explanation as to why Mrs Ws solicitors pressed on with the appeal.
Mrs W will therefore be expected to go out to work.
The reasons for this are that her eldest daughter is at private school and her youngest daughter is aged 10 and therefore far less dependent on Mum than a toddler.
Thus, as with the passage of time, the relevance of given factors such as contributions to the family, shifts on a sliding scale. It is therefore no great hardship for a 10 year old to have their Mum and main carer working part-time. Furthermore it will enable that Mum to gain full-time employment at a later date.
The law has therefore altered very slightly in cases on these facts.
But a completely different result may have been achieved if the children had been younger, the paying husband wasn’t approaching retirement, the wife had got an order for more capital and less income and significantly she had actually made applications for work or even accepted the principle that she had to work, even if she wasn’t able to find any.
In this case Mrs W was actually criticised for being “evasive” about her job prospects. In that regard she did not help herself.
The case is therefore very specific to its own facts. It will have an impact on high net worth families who have ongoing maintenance claims.
But it is a long established principle that financial independence should be achieved at the earliest opportunity and so parties have always been encouraged to achieve this, often by way of a larger capital sum (if available) in lieu of maintenance. However, there is now an overall trend towards limitations on the duration of maintenance and this case is one small part of that movement.
The process remains unchanged and it has been settled for a number of years that the starting point is that there should be a “yardstick of equality”.
Contributions made by the homemaker and breadwinner are of equal value. The Courts will endeavour to split equally the assets accumulated during the marriage.
In high net worth cases, inherited assets received before the marriage, may not be included. Having performed this exercise, the next stage is to decide if this is sufficient to meet the parties’ needs. In the event that the joint assets are insufficient to meets the needs of the family, then maintenance has a role to play. This is always subject to variation as circumstances change.
This decision doesn’t alter the basic reality that bringing up children, harms ones career unfairly or otherwise. Thus one party’s career will prosper whilst the main carer’s time is applied to the demanding role of being a stay at home parent.
The reality remains that even when the papers are full of reports that the Judge allegedly barked “get a job” at the wife, she will not be able to get as good a job as had she been able to draw upon 10 years of career progression rather than motherhood.
In the event that that second career doesn’t meet the needs then she will have to look elsewhere for those said needs to be met. And that is usually from the matrimonial assets. In short, a different route to the same outcome.
What this case DOES NOT rule, contrary to the impression that has been left in some of the media is that:-
- All Mums must go out and get a job per se
- Being a Mum is unworthy
- This is a blanket rule and hereafter cases will stop being judged on their own facts
True, stay at home Mums, with children of minimal dependency, will be expected to find work if they can. There were very few cases in which the standard of living was so high and the parties’ expectations such that, they could expect maintenance forever, without having to work. When this actually occurred they usually ended up in the newspapers.
For the vast majority of couples contemplating a divorce the most important thing is to get the right and sensible advice at an early stage, free from the influence of an eye catching headline.
About Nigel Winter
Nigel C Winter is a partner in the Family Department of Rawlison Butler solicitors, based in the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.
website: www.rawlisonbutler.com
He has been practicing family law for over 2 decades, is a Collaborative lawyer and a regular contributor to a wide variety of publications on divorce and family law.
Disclaimer – This document is provided for information purposes only and does not constitute legal advice.
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