The proposed changes to no fault divorce have been doing the rounds for long before I began my legal training (back before Woolf in the days of green books and stage 1 costs), but this time does there seem to be more of an impetus for the government to actually get something on the statute books?
We are now only nominally a Christian country, we are far more a progressive inclusive society, does marriage need the “protection” of making an unhappy couple wait two years (at best) to find a no-fault fact to move forward? It’s not proposed to reduce the minimum period for marriage from 12 months and there would be a minimum 6 month period from petition to decree absolute (and an additional stage between decree nisi and decree absolute when the parties confirm they wish to proceed).
It’s always struck me as odd that when mediation is trying to help couples move forward the basis of divorce law keeps holding them back and preventing them moving on. Few people go into a marriage aiming to divorce, but in a 21st century country we should really be able to accept that a non-fault based divorce (call it a conscious uncoupling if you like) recognises that people and situations change and that the couple, their children and the wider family who often bear the brunt of any backlash are not further harmed by dragging the process out. Here endeth the lesson.
Mediation helps to reduce acrimony and also speed up resolution of settlements, ironically Quicken Loans is now heading to mediation following an order of Detroit US District Judge Mark Goldsmith.
Quicken are accused of fraud by the Department of Justice in relation the operation of their business, publicly the founder, Dan Gilbert has said he won’t settle as he wants to prove his company is wholly innocent of any wrong doing. Hopefully retired judge and now mediator Herald Rosen will explain to Dan that mediation isn’t about winning and losing it’s about moving forward without blame or acceptance of fault.
The judge in ordering the mediation said he wanted the meetings to take place before the “intense trial preparation” period, in our experience costs suddenly rocket in that pre-trial period as all the paperwork is gathered and last conferences are held (in the US there will also be witness preparation as well).
It’s in situations like this where mediation attempts are essential, the parties need to understand the reasons behind the mediation and the possible outcomes, that all parties can walk away with a result they can live with, and that doesn’t necessarily mean accepting you’re in the wrong, just that fighting to prove uses resources better spent elsewhere.
Elsewhere, in New Jersey the way in which mediation is used in foreclosures (what we call repossession cases) is being codified.
Once passed the new law will give the homeowner the option to go to mediation before proceedings are even issued.
This seems incredibly sensible, years ago I spent hours every Monday morning at Manchester County Court doing “repo” work for various banks and building societies, inevitably the homeowner got given more time to pay and all that happened was the cost of attending court got added to the bill, rarely did anyone find themselves homeless, I don’t know how much of those costs were ever recovered but kicking a person when they’re down never sat well with the courts so avoiding the process by mediation must be an option.
Under the proposed laws homeowners get a second bite at the mediation cherry when proceedings are issued, the fees are not payable by the homeowner and anyone attending the mediation from the bank has to have authority to reach agreement – again this is exactly the way repo instructions used to arrive on a Monday morning, “Bank A confirms you are instructed to accept a settlement of £X extra per month until paid off” so why not use a mediator in the same way? Note to self - contact the banks!
Back in the UK and north of the border Unite is in mediation talks hosted by ACAS with the bosses of Aberdeen International Airport with a view to avoiding strikes which threatens to cause problems for an already blighted industry during the summer holiday peak season. The mediation comes after what Unite has described as a derisory pay increase offer of 1.9% compounded by a threat to end the final salary scheme.
Unite's regional representative Shauna Wright said “we will still go ahead with the ballot – as the mandate from staff was huge – it was one of the biggest turnouts we have ever had...However, we have agreed to sit down again and we wouldn’t be doing that if we were not hopeful that we can come to an agreement...The last thing Aberdeen airport users need is industrial action – especially over the summer months.”
President of the Scottish Passenger Agents’ Association Ken McLoed said “The opening of the ballot on strike action by Aberdeen Airport staff will only put another barrier in the minds of many holidaymakers who are already understandably concerned about how the final outcome of the Brexit negotiations may impact on their travel plans...Many assurances have been provided by the Government, the EU and ABTA that Brexit negotiations will have no bearing on flights this summer, but holidaymakers are still hesitant to commit to booking...The threat of strike action – regardless of the rights and wrongs – does nothing to help consumer confidence…The reality is that many holidaymakers from Aberdeen and the surrounding area already use other Scottish airports for leisure travel. So any strike action during peak periods could drive even more passengers on to Edinburgh Airport where no industrial action is planned.”
Former chief prosecutor for my patch of England Nazir Afzal has offered to mediate between schools and education authorities in Birmingham who are under pressure from parents to withdraw teaching of LGBTQ relationships and rights.
Nazir said he’d be prepared to get the community together to talk to find a way forward adding “You don’t become gay just because you learn about gay things. And neither should they be fearful of that anyway…I’d love to be able to go and talk to them and hear their concerns and see how we can address those concerns. And maybe mediation is required in this respect”
Nazir rose to prominence in due to his work in the Rochdale grooming scandals and he ahs referred to that work in proposing himself as mediator here “I’ve been talking about how British Pakistani men are disproportionally involved in some of the street grooming. Part of that is because they didn’t get SRE, they didn’t have relationship education when they were growing up. Our families sadly are averse to allowing their children to understand relationship education. And relationship education is a real way of protecting them in future.”
There are so many situations which could have been resolved by early intervention of mediation it continues to surprise me the lengths the public (and some lawyers) will go to avoid referral.
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