A mediation is a great opportunity to resolve a dispute quickly and cost effectively. It is important to be as prepared as you can to make the most of the time available. Considering that a court case can take not months but years to reach trial, the advantage of a resolution within a day is hugely beneficial.

There are some practical tips for preparing for a mediation:-

1. Ensure you have all the information you need to make decisions on the day.

This could be taking legal advice, obtaining financial information, securing expert advice from, for example, an accountant, finding witnesses and obtaining evidence to support your case.

2. Remove as many distractions as possible on the day.

This is your opportunity to find a solution.  So whether it is putting on your out of office, arranging child care, re-arranging meetings and commitments for the entire day and evening, paying for a full day’s parking and checking when the car park closes, ensuring that there are no planned internet interruptions if mediating on-line, reduce anything that may impact on bandwidth performance. The list goes on. All of these have the potential to distract you from the matters in hand and are best prepared for in advance to ensure you can commit your attention to finding a solution.

3. Know your best and worst alternatives to a settlement at mediation.

During the mediation, you may be asked at some point to consider a settlement and compare it to your best and worst alternatives. This could be how long the case may continue if no settlement is reached, additional costs to take a case to trial, an inability to complete a project or future plans due to cash flow when dealing with the dispute in court and many more – all of these are to provide space for you to reflect upon the value of a settlement to you on the day of the mediation.

4. Understand the strengths and weaknesses of your case.

Risk assessing your position is vital. However good it seems, it is rare that a barrister will advise a client that they have over a 70% chance of success. Court cases can be unpredictable and for the very reason you have a dispute, someone has a different viewpoint and can present their thoughts on the position which may be so far removed from your own that you find it hard to believe how they reached their conclusions. But, they did and therefore it is helpful balance your position by weighing up the pros and cons of your own case.

5. Think through what your objectives are in the negotiation.

Mediation is a facilitated negotiation. It may begin with the parties setting out their legal entitlements but it moves to a commercial settlement and what the parties need and are prepared to do in order to get a deal done. Very often the judgement that would be available in the courtroom, is not the most practical for either party in practice. Thinking outside the box, being creative and looking beyond the immediate issues may open up different and new options that could encourage a settlement. Try therefore to take a step back and consider what other options could be available.

6. Take care of yourself.

Mediation can be a long and intense day. Making sure that you have a good night’s sleep beforehand, if travelling to a venue for the mediation then factor in additional time so you are not rushed. Take with you anything you need by way of refreshments for the day if these are not being provided and there will also be lengthy periods when you are potentially on your own so manage this time well; take a break and move around when you can.

The Mediator is there to provide you with the best possible chance of settling your dispute but ultimately it is your decision. If you are attending the mediation with the desire to settle the issues, being prepared, open minded and having everything you need to hand is key.

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

Many separating couples may have come across the term “Consent Order” at some point and may wonder what that means.  The term “Consent Order” refers to any type of Court Order agreed between parties.  More often than not it relates to setting out an agreed financial settlement following divorce.  What many do not realise is that just because you have divorced your spouse does not prevent your former spouse from making a financial claim against you.  The only way to prevent that from occurring is to have a Financial Order closing the door on your former spouse’s claims for financial relief.  This is even if the divorce took place several years earlier.

A Consent Order is legally binding and it sets out the financial arrangements you and your partner agree on.  It can set out how you may wish to split assets, pensions, income and debts on divorce.  It can also be enforced by either party later on if one of the parties reneges on the agreement.  A Consent Order will usually include a clean break clause which protects any money or assets that you may earn or receive in the future from being claimed from your ex-spouse.

A Consent Order is usually prepared by a Solicitor as it is a legal document.  Once the Order has been drafted and the parties have signed up to it, it is sent to the Court for approval.  The Court will want to ensure that each party has had the opportunity to obtain independent legal advice or at least aware of their right to do so.  One should note that the Court will not simply rubber stamp an Order.  The Court will want to ensure that the terms of the Order are reasonable and fair to the parties in the circumstances.  In order to determine this, the Court require a completed Statement of Information for a Consent Order.  This provides the Court with a snapshot of the parties’ means and circumstances. 

If a Judge has further questions about the agreement reached, the Judge may require the parties to attend Court to explain why they have reached the agreement that they have or provide further information by correspondence.  If the Court approves the Order it is sealed and each party receives a copy for future reference. 

It is important to note that a Consent Order cannot be approved by the Court until the parties have reached what is called the Decree Nisi in the divorce.  It becomes enforceable once Decree Absolute has been granted.

At Franklins, our experienced solicitors will be able to provide you with expert advice and assistance. Contact Kelly and our Family Team on 01604 828282 / 01908 660966 or email Family@franklins-sols.co.uk.

The decision in Hayley –v- Hayley 2020 EWCA CIV 1369 was handed down by the Court and many have found the decision reached somewhat surprising. The Court of Appeal overturned a Financial Remedy Arbitration Award after the ex-husband protested that it was unfair. 

Some may wonder what is “Arbitration” and “How Does it Work” to begin with. Arbitration is a process in which parties resolve disputes outside of the Court Arena with an appointed Arbitrator. The Arbitrator is a suitably qualified person who will hear a dispute and make an award (decision). It is used to resolve financial disputes between separating couples and disputes concerning children. If the parties agree to arbitrate by doing so they agree that the Arbitrator’s decision will be binding upon both of them. Once the decision has been made the parties send to the Court an Order reflecting the outcome of that decision to have it made into a final and binding Court Order. As a result they agree that there is a very limited basis for appeal and they cannot then apply to the Family Court for a redetermination. 

Parties are represented at Arbitration either by a lawyer or someone they choose such as a Mckenzie Friend. Quite often people will consider Arbitration where their final Hearing has been adjourned last minute by the Court due to lack of availability or more urgent Hearings have to take place. Usually Arbitration is used by the parties wishing to attempt to settle matters swiftly.

In the case of Hayley –v– Hayley, the husband was not happy with the outcome arrived at by the Arbitrator, in particular the Arbitrator’s assessment of his ability to rehouse himself, the distribution of the pensions involved and Periodical Payments he was ordered to make to his wife.  He applied to the Court for an Order to set aside the award. 

The usual approach to challenging an Arbitral Award requires the person appealing to show that the decision on the question of law was obviously wrong on the facts. Yet in this case, the Court of Appeal have now come to a different conclusion. It seems now that the proper test in respect of appealing an Arbitral Award is “whether there is a real prospect of an appeal rather than the test being “no reasonable Arbitrator could have made such an Order”. Some have commented that this introduces a level of uncertainty when it comes to Arbitration which was not there previously. The question is “is this a backward step”? Most often family lawyers would explain Arbitration is to provide finality and usually most advising that contesting an Arbitration Award is unlikely to succeed. This decision suggests that it may be more feasible than thought in the past. 

Whilst some feel that this creates uncertainty, other practitioners are of the view that it is sensible to be able to Appeal a final decision when considering all of the circumstances.

For advice and assistance in relation to Family Law, contact Kelly Longmore and the team on 01908 660966 / 01604 828282 or email Family@franklins-sols.co.uk.

Due to the outbreak of Covid-19 and the lockdown, the Courts in England and Wales have adapted to new methods to ensure that cases continue to be heard. As such, telephone and video hearings are becoming the new normal and will likely stay for the foreseeable future. 

We share our top tips on what to do before and during a remote hearing. 

Before the hearing: 

1. Read the Court Order and familiarise yourself with any joining instructions before the hearing. 
2. If you are representing yourself, do not forget to provide the Court with your contact details. If you are being represented, make sure your solicitors have your updated contact details on file to provide to the Court.  
3. If you are represented during the hearing, make arrangements in advance for communicating with your legal team. You will need to ensure that you have agreed how you can contact your solicitor or barrister during the hearing.  
4. Have essential documents such as the Court Bundle to hand. This bundle will be referred to by the Judge and the legal team during the hearing; having a copy open will mean that you can follow what is going on more easily.  

During the hearing: 

1. Ensure that your mobile or chosen device has sufficient battery to last throughout the hearing and/or you have a charger to hand. 
2. Mute your device. This will ensure that no background noise is picked up and heard in the courtroom. 
3. Make sure that you do not interrupt the Judge or another person whilst they are speaking as it can be difficult to know when it is your turn to talk when you cannot read body language. 
4. If it is a video hearing, dress appropriately as if you were in Court. The Judge and all others in attendance will be able to see you. 
5. Do not record the hearing, as it is contempt of Court to record any court hearing.
6. Make sure that you remain polite and courteous at all times.

If you need legal advice and assistance in relation to an upcoming remote hearing, call us on 01908 660966 / 01604 828282 or email info@franklins-sols.co.uk.

You may not have a choice.

What is Arbitration?

Arbitration is a strand of Alternative Dispute Resolution which has a contractual and judicial element attached to it.

The decision to refer a dispute to Arbitration will ordinarily stem from an agreement between the disputing parties, otherwise known as the “Arbitration Agreement”, where it states that in the event of a dispute, the matter is referred to Arbitration.

Arbitration itself means that when a dispute is initiated through this process, it will be referred to a Tribunal who will have the requisite power to hand down a decision that binds the parties.

What will the Arbitration Agreement state?

Subject to the agreement itself, the Arbitration Agreement will set out details of the process out further and in particular:

• How many Arbitrators will be needed;
• Whether the Tribunal will consist of one individual or three,
• Costs of the Arbitration process; and
• When the Arbitration will be held.

Why should I Arbitrate when I can go straight to Court?

The Court process is lengthy, costly and uncertain whereas the Arbitration process is far more attractive.

Once Arbitration proceedings have been initiated, the process from initiation to a hearing is rather swift.

This will have a significant impact for both parties in that there is certainly with time and legal costs. This is because once the matter proceeds to a final hearing and an award produced, such an award is binding on the parties unless challenged.

At Franklins, we understand that you want a quick resolution that is also cost effective. We will work with you to provide specialist advice and ensure a full case plan is prepared to outline your options and next steps. For advice, contact the Dispute Resolution team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.

The Small Claims Track is used for lower value claims, such as debt recovery claims or contract disputes valued at less than £10,000 and is intended to be a more “user friendly” process. This means that many Claimants and Defendants alike are able to take conduct of the matter themselves as a ‘Litigant in Person’, rather than being formally represented.

However, Court proceedings can often be daunting for those involved and it is important that deadlines and key dates are met to avoid detriment to your claim or Judgment being made against you. This article therefore aims to set out key features of the process and any final Hearing.

So what does a claim in the Small Claims Track involve?

The process

1. Before a claim is commenced, the Pre-Action Protocol should be followed and an initial Letter of Claim sent to the Defendant;
2. If the Defendant’s co-operation is not forthcoming or the parties are otherwise unable to resolve the matter, the Claimant may proceed to file a claim in the County Court;
3. Once the Claim Form and Particulars of Claim have been filed with the Court and subsequently issued and served upon the Defendant, the Defendant will then have 14 days to file an Acknowledgment of Service;
4. If no Acknowledgment of Service is filed within this timeframe, the Claimant may apply to the Court for Judgment in Default against the Defendant for the full amount claimed;
5. If an Acknowledgment of Service is filed, the Defendant will then have a further 14 days to formally respond to the Claim with any alleged Defence;
6. Once the Defence has been filed with the Court, the parties will be sent a Directions Questionnaire by the Court. The questionnaire contains information such as availability for a Hearing, whether the parties are willing to engage in Small Claims Mediation and details of any witnesses. The parties must both complete and return the Questionnaire by the date specified by the Court;
7. Once the Directions Questionnaires have been filed, the Court will then decide whether to allocate the matter to the Small Claims Track and whether a Hearing is required and if so, will issue a Notice of Hearing providing confirmation of the Hearing date, the date upon which the Claimant must pay the Hearing fee and any special directions to be followed by the parties beforehand;
8. Unless otherwise specified by the Court, standard practice is for the parties to file and serve their written evidence with the Court in a compliant format no later than 14 days before the Hearing date;
9. The evidence and documentation supplied by both parties will then be considered by the Judge at the Hearing in order for Judgment to be made.

The Hearing

The Hearing itself will be more informal than those in superior tracks and not at all as daunting or intimidating as often portrayed in TV dramas!

Usually the Hearing will be heard in one of the Judge’s rooms or one of the smaller Courtrooms.  Whilst they are usually open to the public, in practice it is uncommon for anyone other than the parties, witnesses and representatives to attend.

The Judge will have flexibility as to how to conduct the Hearing and will usually have read each party’s evidence and papers before the Hearing begins. The Judge will tend to ask each party to summarise their case in turn and then raise any queries they may have with either party. If either party has any comments or queries with the opposition, often the Judge will allow these to be expressed providing this is done in a reasonable and controlled manner.

Should you have representation?

Because claims allocated to the Small Claims Track are lower value, there are often issues of proportionality in instructing Solicitors to act on your behalf throughout the process. This is particularly so in defended claims and is important to bear in mind because costs recovery is extremely limited in Small Claims matters – even if you are successful.

To assist with this, our Dispute Resolution Team are able to offer a fixed fee consultation service to discuss your matter and provide you with guidance as to the next steps and what to expect moving forward.

If you are a Claimant or Defendant in a Small Claims matter please do not hesitate to contact our Dispute Resolution Team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk for details of our fixed fee services.

The severity of the Coronavirus pandemic has led to all possession proceedings being stayed from 27 March 2020 until 23 August 2020. This has left many Landlords and Tenants alike unsure what will happen with their pending possession claim and how it will be dealt with after this date.

Following the publication of the Civil Procedure (Amendment No. 4) (Coronavirus) Rules 2020 which is due to come into force on 23 August 2020, it has become clear that the Court will not automatically begin to process stayed Claims. Instead, a new Practice Direction will come into force requiring one of the parties to provide a ‘Reactivation Notice’ confirming that they wish for the Claim to continue.

The requirement for a Reactivation Notice will apply to all stayed possession claims, unless they are brought on or after 3 August 2020. This means that any trial date that was set before 27 March 2020, will be vacated and will not be relisted until a Reactivation Notice is filed.

After a reactivation notice has been filed, the Court will provide the parties with at least 21 days’ notice of any hearing to be listed.

If you require assistance with a rental repossession claim please contact Amy-Jane Westaway, GCILEx, in our Dispute Resolution Team on 01604 828282 / 01908 660966 or email amy-jane.westaway@franklins-sols.co.uk.

The recent case of McCarthy v McCarthy of 10th July 2020 saw the Court uphold the Will of the late Margaret Wilcox despite the circumstances in which it was prepared being questioned by two of her children who argued undue influence. 

In this case the Will of the late Mrs Wilcox had been written by the beneficiary who stands to inherit the deceased’s property and was subsequently signed in the presence of the said beneficiary’s best friend and his wife. 

It is important to note that despite the Will being upheld by the Court, the manner in which the Will was prepared was considered ‘concerning’ according to the Judge. Although the circumstances were concerning, there were however other factors which affected the Judge’s decision in this case, including a Deed in relation to the same property, and each case will be decided on its own facts.

What this case does highlight is the importance of seeking specialist advice when considering the preparation of your Will as the outcome of this case could have been significantly different given the concerning background facts regarding the manner in which the Will was prepared, together with the late Mrs Wilcox’s Alzheimer’s diagnosis earlier in the year.

Through using a Solicitor, your wishes will be noted together with your reasoning as to why you wish for your estate to be left in a certain way. This will provide evidence to the court should your Will ever be contested in the future and assists with providing a background in respect of the decision making process. Capacity issues would also be noted and any concerns may result in a capacity assessment being undertaken to provide the Will with a greater degree of security.

This case also highlights the importance of documenting your intentions, as here case the Deed relating to the property was a significant contributing factor in the decision to uphold the Will of the late Mrs Wilcox.

If you would like to obtain advice or guidance regarding the preparation of a Will or Declaration of Trust relating to your property, please contact our Private Client team on wills@franklins-sols.co.uk or call Northampton: 01604 828282 / Milton Keynes: 01908 660966.

There are some fantastic examples of innovation and creativity in business at the moment as companies move to remain solvent during lockdown. When it comes to disputes, the same commercial acumen should be the first to come into play in trying to find the best solution when faced with all the options. All the options invariably include solicitor’s fees and/or Court costs.

Finding that commercial way forward is also supported by the Courts. For many years now, the Courts have placed court proceedings on hold so parties can mediate or explore alternative dispute resolution. Whilst the Civil Procedure Rules which provide the framework for court work and past case law both set out the penalties for those who choose not to explore alternative options, examples of these rules being applied have not as frequent as perhaps initially hoped. Until now.

Times are changing. With now more pressure on the already stretched Court system, lengthy delays cannot be a prospect that many wish to face. The Courts are actively encouraging parties to seek alternative ways of resolving their dispute.

The case of DSM v. Blackpool Football Club [2020] was one such case in which a failure to opt for mediation was heavily penalised. The reasons given for refusing to engage in mediation were thought to be inadequate; simply saying that there was a strong defence was not enough. No defence, however strong, was said to justify a failure to engage in any kind of alternative dispute resolution.

The Judge in this case stated:

“Experience has shown that disputes may often be resolved in a way satisfactory to all parties, including parties who find themselves able to resolve claims against them which they consider not to be well founded. Settlement allows solutions which are potentially limitless in the ingenuity and flexibility, and they do not necessarily require any admission of liability, or even a payment of money. Even if they do involve payment of money, the amount may compare favourably (if the settlement is timely) with the irrecoverable costs, in money terms alone, of an action that has been successfully fought.  The costs of an action will not always be limited to financial costs, however. Trial is likely to require a significant expenditure of time, including management time, and may take a heavy toll on witnesses even for successful parties which a settlement could spare them. As to admission of liability, a settlement can include admissions or statements which fall short of accepting legal liability, which may still be of value to the party bringing a claim.”

If ever there was an incentive to find a commercial way forward using business skills, this is the time.

Find out more about our dispute resolutions here.

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

No, the mediator will not force you to reach an agreement.

A mediator’s role is to help the parties in dispute to communicate and find a settlement that each party can live with and move on.

A mediator holds a unique position. Everything said to the mediator is confidential. This means discussions you have with the mediator will be kept private and not passed on to anyone else without your agreement and this enables the mediator to work with you considering all of your options throughout the mediation process.

Your meetings with the mediator may include negotiation tactics, possibly some coaching on how best to proceed as well as assisting you in considering what the alternatives are if a settlement is not reached. The mediator will work hard to ensure that you have the best possible chance of finding a way forward and a solution when you commit to the process.

The benefits of mediation

Whilst settlements cannot be guaranteed, settlement rates at mediation are high. The process is flexible and in fact, the parties can find terms to agree that are best suited to each of them and not limited to those that a court might order as appropriate to the circumstances in law. This can be hugely advantageous offering flexibility in solutions and even payment terms.

Mediation provides you with more control not less. You make the decisions as to what to do, what to offer and if and when to settle. This will not happen in court nor adjudication. The mediator can be your reality check throughout and facilitate the communication and offers between the parties involved, making it easier to manage negotiations.

If you want to find a way forward and have a process that is quicker and cheaper than going to Court, mediation could be your answer.

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk