Category Archives: Cross-Border Mediation

CHILDREN ARE OUR PRIORITY AND HOW TO HELP THEM TO DEVELOP IN THESE DIFFICULT TIMES

Family Mediation Update – January 2021

I hope that soon we can say goodbye to COVID but there will of course be a lot of work needed to remedy the short term and long term damage caused by this epidemic.  I hope there are some benefits arising from the wonderful opportunity that so many parents have been able to grasp in finding ways of spending more time with their children and to be involved more and more in their growth and development.   The expectation of offering vital home schooling has offered opportunities not only to parents but also to grandparents, friends and other family members to become more involved in our children’s development.   It has presented a sharp learning curve for many of us to get to grips with “Zoom” and “Whatsapp” so we can share these vital tasks and to concentrate on the positive aspects of being able to help children when so many negative stories are circulating.

Sadly, the experience of COVID has been negative for some children who are unable to take advantage of virtual learning and, sadly, some children have been exposed to abuse and subsequent feelings of loss of self worth or even depression. Their childish sparkle is at risk of diminishing in spite of the hard work and goodwill of their individual parents, due to the loss of routine and structure offered by school in normal times.

Some difficult situations exist whereby those caring for children are simply unable to perform these additional tasks. Teachers are professionally trained and their job is made easier by the facilities offered to children to attend school to study and to socialise, away from their homes.  School is the domain of children and I look forward to hearing that children are back taking advantage of that opportunity.

Home schooling requires time, patience and space at the very least.  Modern life rarely presents such opportunities. Children are losing the value of friends who have otherwise offered respite from the arguments that frequently occur behind the closed doors of private homes and occur especially where there is a family breakdown. Children are drawn into those arguments and are even expected to take sides in a parental dispute that is none of their doing.  Parental alienation is really harmful and will eventually destroy a loving relationship between a parent and a child if the practice is not stemmed.

When people are going through separation and divorce. It takes such strength and awareness of   the risks on the part of children who may feel that their special needs for love and attention are no longer their parents’ priority.  They may be feeling they have lost the joy of being children.  Time, patience, warmth, kindness and understanding can become metered.  This is not intended to make parents feel guilty. Nobody intends to forget to think how their children are feeling. Generally the negative feelings experienced by a separated parent are mirrored by their children.  We also believe that most parents, Mums and Dads alike, genuinely believe that they are doing their absolute best and that they are right.  This is ok provided   the parents are able to continue to parent jointly and back each other up.   This is difficult where there may be underlying trust issues and a sense of personal loss from a relationship break up.  Where there is a lack of agreement over routine and structure, this is really troublesome for children who need cohesive parenting.   They simply end up feeling confused and angry and ultimately very upset.

We all get it wrong at times; especially if things are not great at home and when home space is limited.  Communication is tough and so easily misunderstood.  I think we all feel vulnerable when everything has changed over the past year.

We need good listeners who are impartial and where there is honesty but no judgement.   It appears that   social media has become the greatest guide to life because people are not afraid of asking “Google” how to tackle things.   Unlike the ignominy of asking the other parent for help or advice.   Remember though that children still need you both to make decisions and to guide them. They must not become the advisors or the mediators and should not become your friends.

I believe that, with willingness for creativity and changing methods of teaching, that children will adapt very quickly towards finding their optimum way of learning.  Many will catch up hopefully and this will highlight the areas of learning that do not work and identify new opportunities for those who are committed to succeed.

Parental support is crucial but hopefully the current education load placed upon parents will soon be passed back to those who are trained to complement the love and work put in by those at home.

I recall my parenting experiences, juggling the needs of children and managing virtually impossible situations of journey times and meeting work deadlines.  Who took priority in these situations? I really don’t remember but we got by. I expect we just did our best and hoped our children would understand.

I am not a great fan of drama and find that Mediation offers a calm and objective approach for people to look for solutions together and to resolve disputes.  The opportunities to consider options for change work well and people become more confident to discuss what they would hope to achieve without the fear of judgement or ridicule. Mediation is respectful and positive, especially if you know that a young person is going to benefit from this joint commitment to a new way of working together.

We need to reintroduce  to children the opportunity, within appropriate boundaries, the excellence of parental guidance, sticking together and showing respect for a decision making process that can be improved and altered safely by parents.

I hope that children will continue to look for opportunity to learn from parents in terms of respect and compassion and belief that we are there for them.   A physically divided family has great challenges to overcome and in those cases there is a need for reassurance for children to feel safe with both parents.  Strong parenting can still happen and mediation can strengthen those skills.  There is no reason for children to be tasked with the responsibility of becoming involved in adult disputes. The risk of not using mediation is that families become alienated and which then descends into a downward spiral if not tackled in the early stages of separation.  The risks to children are great if they lose the chance to see their parents working together on their behalf and for their benefit and with one voice.

Tricia Muzalewski                                                                                                                 January 2021

WYNN MEDIATION

A SEASONAL MESSAGE TO GRANDPARENTS

At this difficult time leading up to Christmas it is important to remind ourselves of the importance of grandparents to children.

Very often, grandparents can be the mainstay for children who are struggling with their parents’ separation. They need to know they can go to a reliable person who can speak truthfully and without drama. It is also vital for the parents to have that support because going through separation can feel terrible. It is certain that however sad and upset the parents are feeling, those emotions are mirrored by their children.

Specially trained family mediators who are accredited to work with children (CIM trained) are qualified to talk to children confidentially.

We are aware of how sensitive this role is.  It would be ideal for close family members to do this especially in times of trouble.  This must only happen though if they have a meaningful and on-going relationship with the children who are affected by the confusion and sadness that surrounds a family breaking down.  A genuine wish and ability to significantly benefit these children’s lives is important.  The strong emotions experienced by close family members can impair this vital strength.  Mediators are effective in this role due to their professional code of conduct. An accredited mediator has no personal connection or previous involvement with the family.

Children need constant assurance that their lives will return to normal. They want to enjoy love and trust in grandparents and to be helped in retaining continuing contact with both parents even though they are aware there is a separation.  The grandparents must ensure their role does not impact negatively on other family relationships.  Children must be aware that they are never expected to feel responsible for what has gone wrong in their family and must not be offered false hope of reconciliation between their parents.  The mediation role may not resolve the immediate dispute but it can certainly help to ease the upset and anxieties of children insofar that someone is listening to them also.

It is also reassuring just to know that Mum and Dad are working towards making arrangements for the future and that the children are an important part of those conversations. It does not have to be negative and we know that grandparents are great fun.

The internet is not the only source of information and ideas. The wealth of experience of parents and grandparents can bring so much towards alleviating unhappiness.  Let us remember the innocence of children and help them to have fun and to feel safe to love.  Parents sometimes lose perspective due to their own deep unhappiness. The detached role of grandparents is vital to restore calm and to soothe some of those harsh adult emotions that can be overheard and misunderstood. There is no place for blame.

I recall a mediation I carried out with a family.  The son age 12, and his sister age 9, spoke to me in mediation confidentially about how it felt for them when they heard their parents arguing and shouting at one another. The little girl used to go and hide in a tent where she felt safe and immune. She was unable to reach either of her parents or to stop them arguing. Her brother also hid away and took on a role of protecting his little sister. I shall never forget them. By the end of the mediation and speaking of their own experiences, they were able to laugh as children and to talk freely about their dreams for a happy Christmas. They were able to express their sentiments in a beautiful and rather magical way. But, the message I heard was that their parents were embarrassing and they felt lost.  At the end they asked me to relay to their parents that they wanted them to stop arguing and to please allow them to start to enjoy Mum and Dad again.

 

Tricia Muzalewski FMC and CIM Accredited Family Mediator

Wynn Mediation                                                                                                                              December 2020

 

 

A favourite phrase in the context of Family Law is “Reasonableness”

What is a “reasonable expectation” in financial remedy cases?

This is a phrase relevant to mediation cases and to those cases that go to court having  side-stepped the opportunities offered by the mediation process and the  supportive and practical advice  offered by  individual legal advisors who understand and support families who are within the mediation process.

The following notes may be of use to people who are trying to make sense of this potentially expensive area of law if agreement cannot be reached following full and reciprocal disclosure by the parties in a financial remedy dispute surrounding divorce or dissolution of a civil partnership.

The  “sense of reasonableness” must be followed right from the start where consideration is given to the extent of the financial resources of the separating couple  leading them to the possibility of their negotiating   “a capital clean break settlement”.  If not, “reasonable” consideration should be given to the possibility of one party paying spousal maintenance.

The term “reasonableness” extends to the requirement for parties in financial disputes to work fairly  to avoid the risk of costs orders being made if  court proceedings become necessary to untangle situations where the importance of “reasonableness” in negotiations has been forgotten. In such cases, costs penalties may follow should the statutory requirement to provide full financial disclosure been ignored. “Reasonable needs” are key in the majority of cases.

It follows also that as soon as  a couple have reached the position where they have produced all of their relevant statutory disclosure and have provided clarity in readiness for decisions of fairness to be made, it is vital that the importance of starting “reasonable” negotiations should occur from that moment rather than to face delays and possible repeat disclosure once out of date.

Whilst on the subject of disclosure, I refer to the pitfalls of pension disclosure. Sometimes, people think these should be kept outside of negotiations. This is not the case particularly when it comes to making full financial disclosure of marital or civil partnership assets.

The question to ask is whether the factors of a case require division of the respective capital values of the individual parties’ pensions or whether they are looking to equalising income from their pensions.

There are  further questions that are frequently raised;  what is the “reasonableness” of offsetting assets, especially pensions? And,  what weight if any may be attached to a proposition that a pension should “reasonably” be excluded from the calculation of marital assets?

I suspect that from a point of view of fairness,  an objective person may think the equality of income is a more appropriate concept than the idea of equality of capital when looking at how to treat pensions in a divorce case where there is no surplus versus “reasonable needs” in the context of finding a home for a pension in terms of  providing post retirement income.  Hence, “reasonable needs” must be considered carefully when helping people to agree what is fair and the other factors that are pertinent within a long marriage case.

The need to consider “the reasonable likelihood” of a court even beginning to consider   excluding a portion of a pension, even if earned pre-marriage,   is probably a sensible and reasonable way to approach  negotiations  in these often difficult  financial cases.  Sound legal advice is available to assist rather than throwing an unfamiliar dice.

Another favourite is to start talking about offsetting pensions against other categories of pensions or even other assets.   This can lead to difficult negotiations unless all aspects of “reasonable financial disclosure” have been dealt with and clarity prevails.  To run these arguments  can be costly unless supported by sound evidence. Once again, “reasonable negotiations” about how  to cover the costs of exploring these scenarios  are necessary in  the pursuit of  achieving fair and affordable outcomes.

Other areas where the question of “reasonableness” prevails, include  dealing with “soft loans”.   Friends and family members frequently offer these in the context of helping parties to an ailing marriage.      “Reasonable negotiations” should include reference to the question of enforceability of  loans in determining whether they are to be treated as “soft” or “hard” i.e. is it to be  repaid in the “reasonably foreseeable future”.  Due consideration should also be paid to the sensitivity and long lasting impact of challenging such arrangements within families.

The question of how to assess “reasonable need for  income”  tops the list for argument leading to frequently “unreasonable negotiations”.    Time is crucial and reference to different forms of income and how to treat these categories. For example, post separation income may be treated differently to income earned during the marriage.

I have tried to demonstrate how complicated a dispute can become  if the original financial disclosure requirements  are  not met from the outset. Mediation provides for communication and opportunity for polite questions to be put.  It can assist in putting matters into context. So,  when  considering whether to ask a particular question, this needs to factor in the associated question of what are  “reasonable income needs”. It is also worth considering whether “winning” an  argument is the true  justification for raising a point or whether it is preferable to settle for  that crucial acknowledgement from the other party instead.

We try to consider these points within the conduct of a family mediation alongside the important professional code of conduct rules of a family mediator.  I refer to the confidentiality and  impartiality set down by the presence of a mediator and the offer of a space to consider the rationale of “reasonableness” when people are naturally feeling upset.

Tricia Muzalewski, FMC and Law Society Accredited Family Mediator/Wynn Mediation  November 2020

Family Mediators are working remotely during COVID-19

The challenges presented by COVID-19 have been inspiring for some. For others, it has not been very good at all.

The underlying structure offered by face to face family mediation is to preserve tradition. Similarly, the idea of ever changing the practices embedded in our judicial system was inconceivable. However, we now have mediators using “Whats App” and “Zoom” and trying hard to learn these new and vital skills to feed our longing to be able to communicate with people in trouble and to help by using our traditional skills of listening and remaining calm, confident and silent alongside our own fears of being unable to keep up with technology.

Court proceedings within the Family Justice system were falling behind and sinking under the restrictions imposed by people being unable to travel into work and for many to be furloughed.

The courts have had to catch up by finding ways of screening hearings and for many working from home.  Then there is  the multi-tasking required of all of us alike, to care for loved ones and friends and to offer our children and grandchildren a seamless transition into a world of “No, you can’t do that” and also to earn a living.

We are not allowed to mix either socially or go to work unless we are key workers or it is deemed to be completely safe.  It is even a struggle to visit the doctor or the optician. You are able to stay at home though.

This was the stuff of dreams for me when I was at school. I recall watching our beautiful, luxurious, comfortable, grey cat, Marcus, warming his tummy on top of the boiler in the kitchen in the mornings and watching from the corner of his eye the frantic preparations for his adoring family to leave the warmth. For Marcus, it was just another opportunity for an uninterrupted long, dreamy, cosy sleep. For me, it was rain coat and “wellies” to walk that long mile to school and to arrive often soaking wet and cold to start lessons after eternal assembly.

They were good days actually and we all had to do it.  We were pretty tough.

We now have a generation who appears to be developing depression and anxiety. We experience fears of going out in case we are breaking rules and at the risk of offending someone.  It is not that bad and people are beginning to think for themselves and to rationalise where they stand. After all we are all much in the same place.

This is actually mediation. There are choices available and families are working together sharing incredible and innovative ideas to keep children physically and mentally fit.  This is such a strong focus. I heard of one mother who gave her teenage children specific roles of the day.  Firstly, the fun of doing the “Joe Wicks” workout and then “enjoying” the structure of home schooling, only to be followed by the opportunity of shopping with individual lists and trusted individual purchasing power. This must have served a mutual need to have some space away from home and siblings.

We have had the opportunity to learn about children and how they are affected by the changes and the need for families to access mediation and other resources to help alleviate the loneliness and the giving in or flexibility   that aligns with being able to cope.  I am fascinated by human beings and their wonderful attitudes ranging from young and old to meet these new challenges.  For some, this is not new. For others, it has been revealing just how much can be achieved by remaining at home or even giving some time to a person who is alone or even, just a smile. This is of course difficult behind a mask but all is possible. So, this morning waiting for that blood test and listening to the conversation about the shared problem of glasses steaming up when wearing a mask and possible ways to overcome this. Then there was the poor man who believed he had an appointment today and his efforts to persuade the masked lady behind her desk that he had made an on-line appointment.  No luck there I am afraid. He did concede but it was difficult for him.

Then, the joy of being told that I have fantastic veins, which is the dream of any phlebotomist apparently.  There is so much that we take for granted and it can actually add to our day and apparently for others.  Just try to keep positive and take advantage of those moments when you want to share those feelings even at the risk of sounding daft.

This is the role of a family mediator. We hear some very sad stories but are always willing to listen. We are unable to invoke change but do, in some ways, help people to feel acknowledged and to feel a sense of normality in this difficult and trying time.  In turn, they can then share their own sentiments and wishes to make change which may seem insurmountable when you are left alone to worry.

So, when did you last have a holiday?   That used to be a very ordinary question. Now, it is probably not the best way to start off a positive conversation. Perhaps, instead we should be checking out the best hair dye and how much we have learned from having to do these things ourselves. After all, we are in the same boat.

There are new opportunities for learning and considering the future of others once our clever scientists have discovered how to put Coronavirus back in its box.   The trick is not to become disillusioned. I watch people walking their beloved dogs and the joy and time they are having to spend together.  They are lucky of course and many do not have that opportunity other than to make plans for the future. They may be feeling that their only route is towards disillusionment and depression. Then, there is the gentleman who lives round the corner and who sat outside enjoying the summer months.  He is 93 and I didn’t notice him before but I have learned so much from him over these past few months. For example his joy of simple pleasures past and of his calm acquiescence to the privileges of old age and experience.  The government during crisis has to gauge behaviour shifts in adults. I ask is it working. I hope so but if only we all had the wisdom of that old man but it doesn’t work like that and never did.

In mediation, people who have private law family disputes are told by the judicial system that they will need to go to a mediation assessment before they are able to take their legal case to court. They seem ok about this as it is an opportunity to speak and rationalise about what is happening in their personal life and how it impacts on others. It really is important.

We have discovered just how capable many people are once they realise their own skills which may be enhanced by the help of a mediator who is a facilitator and an impartial third party to other people’s disputes. For many, the “bossiness” from the powers that be, ranging from politicians to the courts still work but I believe that people are beginning to think differently. We used to listen to our mothers and grandparents for advice. We now listen to Google.

I like being part of the mediation world because mediation is empowering people; not bossiness. It has to embrace change which keeps everyone relevant.

It remains difficult for parents to give advice since none of the old reassurances or job hunting tips now apply.  Even meeting new people is different and obtaining new opportunities that previously were available by way of graduate schemes, apprentices. These have largely disappeared I believe. I try to focus on children who are in need of urgent help to plan their lives and who are faced with predictions of high unemployment levels and also the change of family structures. These are the people who need our help in looking at pooling family resources to stay together and help old and young.

Let us hope that we shall soon return to enjoy the things we rather took for granted and to perhaps make some changes in addressing our own individual futures.

Tricia Muzalewski FMC and Law Society Accredited Family Mediator

Wynn Mediation                                                                                                              November 2020

Family Mediation has never been needed more than now.

I have heard so many remarks about bullying, prejudice and demoralisation and how human relationships are in crisis.

I recently attended the 2020   On-Line Family Mediators Association (FMA) Annual Conference. The theme was mediating in a time of Change and trying to determine what is “the new normal in family mediation”?

At a time when there seems to be so much despair amongst families who are struggling  due to financial worries and no end of other troubles as the list is endless.

A lot of time was devoted at the Conference in reviewing the role of Family Mediators who have a strong sense of wishing to facilitate conversation. Like everybody else, there is a need for mediators to adapt and change but how far does this take us? Whatever we do, family mediators by their nature are out there to do what comes naturally to them…. Mediate.

I believe that mediation is a process that involves kindness and compassion.  We need a proper understanding of mental health and how it affects people not only during Covid but also when it comes to dealing with the difficult decisions to be made when divorcing and separating.  We too have to look after ourselves as we do others and to address our own mental health.

 

We have seen our divorce system change following the Divorce Act 2020 and are mediating in times of change which requires resourcefulness and resilience alongside compassion to achieve to help protect the wellbeing of families and mediators in times of isolation and change.

Compassion must be twinned with finding objective, reliable and safe outcomes in mediation to eliminate the weaponising of children who are so distressed when parents are in dispute and who live in fear of being left without seeing either one of their parents.  Then there is the fear of responsibility being placed on children who also suffer from mental health problems, anxiety and eating disorders to mention a few, because we have been living in uncertain times.   The mediator has to be aware of the impact of these problems and to work to understand possible cultural differences in order to be effective in helping people to make change that will help to rebuild better family communication, trust and fairness.

Mediators are not angels but they are usually very patient and willing to join in with the discussions between parties who are in dispute to find the next step in trying to move forward. The parenting relationship never stands still. Neither the court nor family law practitioners can make changes for others but it is possible to work towards minimising the areas of dispute so that minds can start working towards building a better future and to concentrate on making adult and children’s lives better now and in the future.

Tricia Muzalewski,   FMC and Law Society Accredited Family Mediator

Wynn Mediation                                                                                                              October 2020