The start of a New Year often brings a sense of reflection and new beginnings. For many couples, this time of year can prompt difficult decisions, including the choice to separate. If you find yourself in this situation, you are likely facing a number of important decisions for the year ahead; one of the most crucial being the future arrangements for your child or children. This blog will take you through the practical steps to reach a fair and sustainable agreement.

What Are Child Arrangement Orders?

A Child Arrangements Order is a legally binding Court Order made through the Family Court, which can stipulate:

a) Who the child will live with;

b) The contact arrangements with the non-resident parent (or other significant individuals depending on the parties of the proceedings).

Such orders can encompass various eventualities, from what happens over half terms and summer holidays, to the arrangements on special occasions celebrated within the family.
If you and your ex-partner are struggling to agree on matters after your separation, a Child Arrangements Order may help provide clarity and legal certainty.

Any decision made by the Court will be made in accordance with the ‘welfare principle’; that being the welfare of the child is the Court’s paramount consideration. Factors set out in the ‘welfare checklist’ will also be applied to the child’s individual circumstances, such as their age, harm suffered or at risk of suffering, the impact of any change, and more.

There is a presumption in law that both parents should be involved in the upbringing of their child, as long as there are no safeguarding concerns that will prevent this.

Where do I start?

Any child arrangements may be agreed between you and your ex-partner directly. This is the best case scenario as the decision making is in your hands, as opposed to a Judge who will not personally know your child.

What if we can’t agree?

Option 1 – consider mediation

Mediation is an effective way to resolve disputes without involving the court. It involves a trained mediator who facilitates a meeting to work out an agreement. Mediation is voluntary and non-binding, but it can save time and money, and is often less stressful than court proceedings. If mediation is successful, the agreed arrangements can be formalised into a legal order.

Option 2 – seek legal advice

If you cannot reach an agreement on your own or through mediation, you may need legal assistance. A family solicitor can help you navigate the process, represent your interests, and ensure that the child’s welfare is the main focus. We can assist with:

• Drafting child arrangement proposals;
• Engaging in negotiations between you and your ex-partner;
• Representing you in court if necessary;
• Ensuring that the final agreement is in your child’s best interests and is enforceable.

Option 3 – Court applications

If mediation fails and an agreement cannot be reached, you may need to apply for a Child Arrangements Order as a last resort. The court will assess the case, hear from both parties, and make an order based on the child’s best interests.

Things to consider when making arrangements

As you begin to plan for the year ahead, it is important to consider the following factors that may impact your child arrangements:

• School holidays and routine: many parents will have differing views on holiday schedules. Plan well ahead to avoid confusion.
• Travel and location: if you live in different areas, how will travel be managed for the child?
• Additional needs: if your child has additional needs or requires support, both parents will need to be made aware of any necessary care, support, or appointments. Discuss how these will be managed in both households to provide consistent care and avoid disruptions.
• Flexibility: children’s needs can change over time; be prepared to adjust arrangements as your child grows or as circumstances change.
• Communication: determine the most effective way to communicate with your ex-partner after separation, ensuring that you can discuss matters related to your child.

We understand that sorting out arrangements for children can be emotional and challenging. Our team is here to guide you through the process, ensuring that your child’s future is secured whilst protecting your rights.

If you would like to learn more, you can contact our Family Law team here or call on 01604 936512 / 01908 953674 or email info@franklins-sols.co.uk.

Alternative Dispute Resolution (ADR) is a fundamental aspect of the Civil Procedure Rules (CPR) which are the rules that govern the process of Civil Litigation. ADR is a way of settling a dispute other than having a judge decide the claim at trial after a lengthy dispute. ADR includes various methods of settling a dispute such as mediation, arbitration, part 36 offers, early neutral evaluation, without prejudice offers and an ombudsman.

CPR 1.1. contains the overriding objective which states that cases must be dealt with fairly and at a proportionate cost which would include the case being dealt with at a proportionate cost to the sum in dispute. If ADR is attempted early on in proceedings and is successful, it can save the parties the time and cost of a lengthy litigation dispute. Even at the end of a lengthy dispute that does result in a trial, the outcome of the trial cannot be promised. A claim going through the trial process has many stages that must be completed including but not limited to disclosure, exchanging witness statements, cost budgeting, expert instruction and trial preparation. All of this legal work will require payments on account throughout the process so even if a party is successful at trial and gains a cost award against the other party, expense will be incurred in the interim leading up to trial.

There is then also of course the chance that a party may not be successful at trial due to various reasons. The normal rule is that the successful party will be able to retrieve their costs from the unsuccessful party, although it is not possible to recover every penny a party has spent on litigation leading up to trial. However, a Judge can fray from this rule if they deem that the successful party has not been cooperative throughout the process and has unreasonably refused an offer of ADR. This means that if a party is successful in their claim but it is found that they unreasonably refused an invitation to enter into ADR, this may result in an adverse costs order. Mediation is a form of ADR in which parties are entered into a confidential meeting outside of the court process with a mediator who will communicate the offers of settlement between the parties.

Mediation has a high success rate of settling disputes so that the need for trial can be vacated. The case of Halsey -v- Milton Keynes General NHS Trust (2004) highlighted that there can be costs consequences for unreasonably refusing mediation where a Judge finds that mediation could have reasonably settled the dispute.

The Courts do not look favourably on parties who “want their day in Court” and strongly encourages parties to consider a reasonable alternative. The penalties for parties who don’t engage in ADR can include that the unreasonable party may be ordered to pay the other party’s costs on an indemnity basis. This could mean that the refusing party would have to pay the other party’s costs even if they are not proportionate to the amount in dispute. The Court often order a “stay” of proceedings which essentially pauses proceedings whilst the parties attempt ADR and often include on their orders that the refusing party may have to lodge a witness statement explaining their refusal to the Court.

It is well known within the profession that the Courts are extremely busy which causes significant delay in proceedings and countless adjourned trials, meaning that the relief that comes with a settled dispute is too often delayed for parties. The amendment No.3 to the Civil Procedure Rules comes into effect on 1st October 2024 which will include a stronger focus on Alternative Dispute Resolution which will take some pressure of the Courts.

For further advice and assistance please contact our Litigation and Dispute Resolution team on  01604 344562 / 01908 916096 or email info@franklins-sols.co.uk.

Divorce

It is not a simple matter of beginning your no-fault divorce online by yourself, it is pivotal that you receive the right advice to prevent your ex-partner from coming back for more money. It is crucial that you put a financial consent order in place showing what each party are receiving and can prevent any disputes in the future!

You may believe you are both amicable now, but a lot can change during the 26 weeks whilst you wait for your Final Order, whether it’s the start of a new relationship, child arrangements or pensions being disputed, it is best to resolve all loose ends to allow you both to more on.

There are a few things to think about whilst you are waiting 20 weeks for the courts to issue your Conditional Order and an additional 6 weeks for the Final Order. We highly recommend that you obtain legal advice on the finances before you finalise the divorce.

Alternative Dispute Resolution

Both amicable and contested consent orders need to go through solicitors to be agreed. However, there are a number of alternative solutions that can be discussed with your instructed solicitor, such as Mediation, Collaborative Law, Arbitration and finally Financial Court Proceedings.

Finances

If you did not put in place a pre-nuptial agreement before tying the knot, now is the time to think about the matrimonial home and your assets. You need to consider whether to have a Separation Agreement drafted or make the agreement legally binding with a Consent Order, which is sealed by the courts. Parties can choose to amicably agree the contents of the consent order and have one solicitor to draft it with parties obtaining Independent Legal Advice before signing. The main topics to be discussed with the instructed solicitor are the Matrimonial Home, Pensions, Life policies, Spousal Maintenance and Child Maintenance.

Children

Your Divorce does not only impact you but your children as well, it is crucial to arrange child arrangements with your ex-partner. The courts will not get involved unless one party disputes the arrangement. It is highly recommended that parties attend mediation to obtain legal advice on the matter before proceeding with any arrangement.

Every situation is different and at Franklins we can guide you through the process which begins with an initial fixed fee meeting costing £195 during which we can tailor the advice to you depending on the situation with the intention of guiding you to a fresh start without the fear that your ex-partner will come back for more.

If you feel Franklins might be the right firm to advise you on your legal position, and you would like to enquire about when an initial appointment could be scheduled, contact our Family Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk 

So you have decided following the breakdown of your relationship to try to resolve the issues arising between you and your ex in mediation, and found a mediator who is willing and able to help you. So far so good. Mediation can be an excellent way to reach agreement on the important decisions that will need to be made for your family by you and your ex amicably and cost effectively. But do you need a solicitor too?

We would say so, yes. Instructing a solicitor to advise you alongside the mediation process can help you navigate the process more effectively. While mediation is designed to be a collaborative and less adversarial approach to resolving the issues which almost inevitably arise following relationship breakdown, having legal representation can still be valuable for the following reasons:

Legal Knowledge and Expertise: the law surrounding relationship breakdown can be complicated. An experienced family solicitor will have a deep understanding of family law and can support you during the mediation process, making sure you understand that you know your rights, what to expect, and helping you to make informed decisions.

Objective and Rational Advice: the turmoil caused by relationship breakdown can be challenging, and it is not unusual for impulsive or irrational decisions to be made as a result. Working with a solicitor can help minimize the chance of that happening in mediation. A solicitor will provide objective advice based on legal expertise and experience, supporting you to make decisions that are in the best interests of both you and your family in the long run, even when emotions are running high.

Negotiation Strategy: Mediation involves a third party mediator facilitating discussions between you and your ex in a way that supports you both towards making joint decisions about your future. Inevitably, negotiations will be necessary. A skilled solicitor can help you develop a negotiation strategy, and increase the chances of ensuring your interests are protected and that you achieve a fair outcome.

Support within the process: While mediation is generally a more cooperative process, than for example court proceedings, conflicts can still inevitably arise. The starting point will be that solicitors are not present in the mediation sessions themselves, but that does not always have to be the case. If it is thought that solicitors being present could help rather than hinder the mediation process, and everyone agrees, solicitors can also be present during the mediation sessions to advise and support you.

Document Preparation: It is likely that at the conclusion of the mediation, legal documentation to reflect the agreement reached will be recommended. A solicitor can ensure that these documents accurately reflect the agreements reached and comply with any relevant legal requirements. If your solicitor is already familiar with the circumstances of your case, the process of drawing up the documents is likely to be easier, not least because they will have pointed out any issues with the proposed settlement before agreement is reached.

Peace of Mind: Relationship breakdown can be extremely stressful. Having a solicitor by your side can provide you with peace of mind, knowing that you have a professional guiding you through the legal aspects of the process.

Not many relish the prospect of contacting a solicitor, let alone a family solicitor, and here at Franklins we are realistic about that. We try to make the process of instructing us as easy and pain free as possible. We offer an initial appointment for a cost of £195, during which we try to give you an understanding of your legal position and what the future might hold.

If you feel Franklins might be the right firm to help you following the breakdown of your relationship, and you would like to enquire about when your initial appointment could be scheduled, please contact our Family Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

Mediation MeetingA 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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

The without prejudice protection offered by mediation is often one of the main attractions to this means of alternative dispute resolution.

What is said cannot be used in a later trial or court hearing as it is protected under the Mediation Agreement which reinforces this protected status in the form of a signed contract.

However, there are exceptions even to this Agreement.

In the case of Berkeley Square Holderings & Ors v Lancer Property Asset Management Ltd & Ors [2020] EWHC 1015 (Ch) the Judge considered the circumstances in which mediation papers could be relied upon at a later trial. He summarised the applicable occasions as follows:-

  1. If there is a claim of fraud, misrepresentation or undue influence;
  2. Where there is a dispute over whether the negotiations were finalised in a concluded settlement;
  3. Where the privilege is being used as a cover for perjury, blackmail or another form of unambiguous impropriety.
  4. Where, even though there has not been a settlement, an estoppel (or promise/agreement) has been said to arise out of something said during the mediation
  5. Where a delay could be explained away by the negotiations;
  6. Where it is relevant to the interpretation of the settlement agreement to admit objective facts referred to in the negotiations;
  7. Where there is no dispute as to the truth or otherwise of a statement made during the negotiations and admitting the evidence of such a statement is necessary in order to ensure that an issue raised by a party is fairly decided before with court with no adverse effect on the property to which the other parties are entitled. This specifically covers that not to include the statement could result in an unfair trial taking place.

These circumstances are therefore limited and are specific in their nature. The majority of mediations pass without reference or need for them to be relied upon and mediation remains one of the most effective alternative means of resolving a dispute.

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

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

 

There are some key criteria to consider when selecting a venue that can help a mediation run smoothly.

If the parties have solicitors or barristers representing them, often a mediation can take place at one of their offices. It’s often the cost effective option and therefore makes sense but there is a word of warning.

It is a false economy if one of the parties will perceive themselves to be on the others “turf” and be uncomfortable from the start. That isn’t conducive to securing a resolution and will not be in either parties interests.

The environment is important and given that there will already be tensions between the parties, increasing this with a venue that is not seen as neutral can start the process off on the wrong foot. If it can’t be avoided, take steps to ensure that both parties feel just as comfortable even if it means arranging to arrive much earlier and look around. A neutral venue has advantages providing it is equipped to handle the mediation; however with good preparation steps can be taken to even out any perceived advantage if that proves necessary. In any event, the mediation should ideally be somewhere convenient for all.

The general rule of thumb is a room per party and one for the mediator.

The reasoning is that each party can then have their own private space for the duration of the mediation in which they can talk together and with the mediator without being overheard. This is important. The mediator generally has a room as well that is large enough to host a joint meeting between the parties if appropriate or to bring individuals together to discuss elements of the dispute. The mediator’s room is neutral and, similar to the point above, if you are to organise the mediation without a third room, there may, as above, be a need to consider how one of the parties would feel walking into the others room for a joint meeting. Territory can be relevant! Having said that there are many successful mediations that take place every day with only two rooms. It is helpful to talk over with your mediator as to what might best suit your mediation.

The rooms should also be able to accommodate those attending comfortably. If the room is tiny and everyone is squashed together, it will not help those attending to focus on the key issues in dispute. That might be seen as a good thing, but it isn’t.

Mediations vary in length and therefore it can be helpful for the venue to be able to accommodate the unpredictability of the process. The rooms might be needed for longer than initially anticipated and it makes it easier if you know that you can stay put if additional time is required. The alternative could be losing the good progress made and then having to re-locate somewhere else risking the loss of the momentum of the negotiations.

There should be water and drinks available and also refreshments for lunch and something in the afternoon to sustain everyone to overcome any dip in energy levels as the basic minimum. Alternatively, the parties should come prepared with food, snacks and plenty of drinks. It is not unheard of for local takeaways to be called upon to provide much needed sustenance when the process goes on after hours.

Having a good phone signal is important along with Wi-Fi/internet points, plug sockets for charging laptops and phones. A printer and/or copier is also very helpful. It can be helpful for each of the rooms to have a flip chart or white board and pens available.

If the mediation is taking place in the summer, having air conditioning is likely to be appreciated to keep everyone comfortable. Ensuring that the rooms are warm enough in the winter is of likewise importance.

If you have parties that are particularly acrimonious, it can be necessary to consider separate entrances to your venue or agreeing arrival times and also checking whether toilets facilities are in separate areas just so there is the reassurance of knowing that there is no risk of bumping into each other.

Having parking at the venue or nearby is also really helpful. It is also worth checking if using a public car park when it closes! Good transport routes may also be relevant to those attending.

There are venues that cater very well for mediations and promote themselves for this purpose. It is always important just to check that they do meet your needs. Alternatives are meeting rooms at hotels, conference venues, corporate boxes at sporting venues and community centres to name just a few.

Always make sure on arrival that you have a means of contacting the manager or event co-ordinator on the day in case there is anything you need.

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

Online mediation can bring together parties in dispute from all over the UK and abroad. It provides a means of resolving issues that are preventing progress and keeping individuals and businesses locked in the past.

As with all mediation, all those participating have to have agreed to take part in the process. A mediation will not work if someone does not want to take part and a mediator will not force someone to do something that they do not want to do.

What do I need to undertake an on-line mediation?

How does it work?

The mediator will agree with the parties the best way of organising the mediation. This is likely to be by video conferencing or Face Time. Often Skype, Microsoft Team meetings or Zoom are used and there are of course other alternatives too.

Trying out the technology beforehand is key to ensuring as much as possible that everything will run smoothly on the day and that the online mediation is feasible.

The process can involve the mediator simply contacting each party separately and confidentially to explore the issues important to them and begin to open up communication for negotiations to take place. This can be with the mediator acting as a “go-between” or it could mean the mediator facilitating direct communication by video conferencing the parties together to speak directly. The mediator would always prepare everyone for this session beforehand if it were to take place.

Whilst there is an overall structure and framework to the mediation process, every mediation is different and the mediator will always be flexible and adapt the time spent to ensure that the best possible chance of securing a resolution is achieved.

Any agreement is circulated between the parties, signed and scanned back in exchange. It may also be agreed that electronic signatures could be used to create a contractual binding agreement.

Is online mediation easy to arrange?

Yes, very easy. All that is needed is a reliable network, a mediator who works with the technology and parties that are willing to engage to resolve their dispute.

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