Still talking about custody in 2014? Seriously?

It is alarming that in 2014, some 15 years after the Children Act was passed, and having recently seen the Children and Families Bill made law, that there are lawyers who are still talking to people about custody. It’s bad enough the term is still widely used on television and in the media, but lawyers should know better. Even if they don’t use the term they are talking in terms of one parent being in control of the child’s life or wielding the greater power, or other words where the effect is the same. Surely this isn’t still happening I hear you ask. I’m afraid it is because I have recently been given an example of this very thing happening.

Picture the scene: a mother walks into a solicitor’s room. Her marriage is breaking down and whilst she is sad she knows that it has come to an end. What she is thinking about now is what happens next? How do they go from living as a family of 3 (or 4 or 5) in one house to living in separate places. How can this be done? How can they make the arrangements? What do they need to think about? They have a child or children that need to be cared for – how will that work? The solicitor then explains that as a primary carer she should have the children living with her. She will need a house to make sure they are housed. She should get what she needs. It’s just what she wants to hear. I will be OK. The law will be on my side. Where is the talk of collaboration? Of working together to find a solution that benefits everyone? Where is the talk of making arrangements that benefit children, of making sure they are safe, well and reassured that they are still loved by both parents?

I also have to ask what even is a primary carer these days? In circumstances where both parents work full time (or something approximating full time) and one drops the children at school, or nursery, and the other picks them up why is one role supposedly more important than the other? One parent takes the child to the doctors this week, the other takes them to the dentist the following week. One parent is drawn into a last minute meeting so the other parent quickly makes arrangements to leave work and pick up the children. Isn’t this just parenting?

Telling someone in the midst of a separation that they somehow have more say than the other parent is like giving a teenager who has just passed their driving test a formula one car. It is something their heart may desire but they may well struggle to use this hugely powerful tool wisely and it will more than likely end in disaster. Any separating parent should be encouraged to work with the other parent to jointly parent their children and to ensure that the children get to spend time with both parents and are reassured that they are loved and that they have done nothing wrong. They may not still be in a relationship with each other for their own benefit but they will continue to be in a relationship as parents for often years to come. There are great difficulties in each parent deciding to parent their children separately rather than in conjunction with the other parent. How can there possibly be similar rules, boundaries and expectations in 2 houses if the parents aren’t working together?

If solicitors cannot offer this simple but essential advice to their clients then there is a great risk that the separating parent will embark upon a destructive and unhelpful course. Solicitors are still often the first port of call for a separating parent and it’s vital that the advice they get is sensible, constructive, practical and that it will equip them to properly take their next steps. The advice and information given by family law practitioners can have a direct impact on what happens to a child and their experience of divorce. It’s a huge responsibility. We all need to understand it and take it seriously. All the MIAMS and other meetings exploring options will count for nothing if one parent already believes that right is on their side and they can make unilateral decisions about their children’s future. And what will that child or children’s future look like if one parent acts in that way, and believes they are entirely right to do so?

Random acts of kindness

I like to write blogs on this website about things that have got me thinking. Often these can be connected to my work as a family mediator, and my previous life as a family law solicitors. But that’s not always what I’m initially thinking about.

My twitter profile says “Give something back” and this is something that I am a big believer in. We take a lot from the world and it’s important to keep the balance by giving things back. I also believe that I benefit hugely from help and kindness from friends and family and it’s only fair that I return those favours. In a self-preserving kind of way it’s what makes it work because those who do not return favours may find that their credit runs out. I also think helping each other out makes us all a tiny bit less stressed and we all reap the benefits of happier friends and family.

In the last couple of weeks I saw a link a friend shared on Facebook encouraging people to do one random act of kindness each day during lent. I also recently found out about an Easter egg collection for a women’s prison – the idea is that children visiting their mums in prison get an Easter egg to try to make the visit just a tiny bit nicer. So I have been spreading the word about this and dropping my own Easter eggs off.

I truly believe that if everyone did at least one kind thing every day the world could be a considerably better place. It’s not just a “goody two shoes” type thing, it’s basic science that there has to be a balance to everything and if you’re taking more than you’re giving then things are clearly out of balance. I think it’s this kind of mentality that leads me to want family lawyers, mediators and counsellors to work more closely together. To me it shouldn’t be about the fees targets for law firms, it should all be about what will give the client the very best outcome. Yes law firms have to be commercial to survive but I really believe that if they are giving their clients the very best service regardless of the cost benefit to them, then they will. I mean wouldn’t you recommend the person that gives you the very best service and not the most expensive one?

So my questions today are these:
1. Do you do one kind thing every day?
2. Are you giving enough back to keep the balance with what you’re taking?

What’s in a statement?

As a mediator I am endlessly fascinated with language and why people choose the words that they do, and what response they receive to those words. In the mediation room simple phrases such as “my children” and “our children” can elicit such different responses. But my fascination is not limited to the mediation room. Observing conversations and interactions can give you a fascinating insight into how the language we use affects the responses we receive.

I consider myself to be very much a student and not an expert but it is only through observing interactions and really noting the use of language that we learn about it. Liz Stokoe’s study has produced fascinating insights for professional mediators. But as human beings who interact with numerous people on different levels every day it is in all our interests to try to deal with matters as constructively and productively as possible. Heated discussions usually drain those involved and seldom resolve the problem that was the subject of the conversation in the first place.

Consider these alternative phrases and which ones lead to a constructive conversation and which ones led to a heated discussion:

A. You haven’t emptied the dishwasher. Again. So I’ve had to do it. Again.
B. There’s an awful lot going on for you at the moment, so I’ve emptied the dishwasher. It would really help me if you could do it next time. Would you mind?

A. I’ve just seen Peter and Jane have an argument by the swings. Shall we go and speak to them?
B. Your son has just hit my daughter.

A. I’ve ordered the flowers for Mum. You owe me £20.
B. I sorted the flowers for Mum. The ones she really likes were a little bit more expensive so your half would be £20. Is that OK?

How we approach people and start conversations – often over difficult issues – can directly affect the response we receive. Starting a conversation in an accusatory way, or instantly communicating that you feel you are the wronged party will seldom elicit a sensible discussion. Anyone who perceives they are under attack will move to defend themselves, and
possibly launch a counter attack. This is important to bear in mind in the practice of family law, but also in our day to day lives. We should all be choosing our words carefully.

Are you burnt out?

Since starting my own mediation practice I have been doing a great deal of networking amongst solicitors and other professionals. One of the things that has really struck me over the last 9 months is how many solicitors confess to being burnt out – or to have felt like that in the past.

Frankly the fact that so many feel this way doesn’t surprise me. Family lawyers have had to get to grips with so many changes in the last few years – probably none more pressing than the loss of most legal aid family work. On top of this many family lawyers have to meet costs targets in a world where clients now want Pay as You Go legal advice and to have a free appointment and then think about it for 2 years. There is all this and still it remains one of the most challenging areas of law where you need a wealth of knowledge and you see people who are emotional, depressed, desperate and angry. In all of this you try to persuade people to follow a path that will serve them and their children best in the long term and not pursue a temporary short term goal motivated by revenge or hurt.

If you consider that, you wonder how there are any family lawyers left. Yet many consider their work a calling and the times when they know they have helped a family move on in a constructive way will keep them going through the more difficult and challenging cases.

What I think is interesting is that more people will admit to being burnt out and feeling that they have nothing left to give. I started working as a paralegal in 2001 and the last 13 years have, I think, seen big changes in how people talk about their work (as well as in the work itself). It seems to me that the profession is starting to open up and talk more about the effect of doing the job. A genuine debate about the effects of working in high stress conditions can make others feel more able to say that they too are struggling. The question that needs to be considered is that if this is a problem, and we are now talking about it, what are we going to do about it? Mediators and counsellors remain the only practitioners in this area who have PPCs (Personal Practising Consultants) and supervisors. Some lawyers are fortunate to have good mentors and support networks at work and home. Others are not. If we are aware of the high levels of stress facing family lawyers then we ignore this at their peril – and at a gross risk to clients. So what steps should family lawyers be taking to support each other? Should all practitioners in this area be looking out for and supporting each other? In fast changing times in the area of family law do we want and need more changes? If there are to be changes who should and will they be initiated by? These are all questions we need to be answering if we don’t want to see the entire profession complaining they are burnt out and deserting it in even greater numbers.

Fish out of water?

I’ve recently been looking at updating the website I set up for my mediation practice, LKW Family Mediation. I have an idea of what I want to achieve with the website re-vamp but I must confess that my technical knowledge around websites is not brilliant. Hardly surprising really given this was the first website I set up and you tend to acquire new skills as and when they’re needed, or you develop an interest in them. I asked on twitter to find a recommendation for someone with the technical skills I lacked. Since then I have been inundated with tweets, DMs, emails and even a phone call from companies telling me what they can do. I’ve spoken to a few and explained what I am trying to achieve and asked what they could do for me. I’ve also explained my complete lack of techie knowledge in this area. A number of people have spent time telling me what I need, and others what I don’t need (and sometimes both). A couple have taken on board the fact that I have limited understanding and broken it down into language I can understand. Many have simply talked in their own language and left me utterly baffled. I eventually decided on someone who was recommended to me (note that means you lovely web people can now all stop sending me your sales pitches).

In the midst of trying to decide on a course of action for my website it struck me how many parallels there are between this and a new client coming to see a mediator, lawyer or counsellor. They may simply be armed with the knowledge that their relationship or marriage is in difficulties and that they need to do something about it. They may even have decided that the marriage or relationship is at an end. Unless they routinely go through marriage break ups (which, let’s face it, is very rare) they are unlikely to have much idea of what happens when faced with a marriage or relationship ending. They will be unfamiliar with the legalities (beyond what a quick google search may tell you), the processes and the language. They may simply have an idea of what they would like to achieve. This is likely to be a practical picture of how the would like their arrangements to look after a separation. It may, or may not, be realistic.

It also struck me how confusing it must be when you don’t understand something and you have various different people telling you what you do and don’t need. Without understanding what the processes and technicalities are, you cannot make an informed choice for yourself. It’s difficult to take on board advice from different people when you don’t understand what they’re talking about, and you’re acutely aware that they want your business. It’s even more confusing when you factor in trying to decide whether you need a lawyer, mediator, or counsellor (or all 3); and whether you need mediation, collaborative law, arbitration or a hybrid of those processes.

In sorting out the website I came to the conclusion that I needed 3 things:
1. To work with someone who seemed to grasp what I was trying to achieve and who spoke to me in a language I could understand.
2. A recommendation from someone I trusted that the company was good.
3. A better understanding of such technical things and I have therefore been trying to make myself a bit better informed.

I think those 3 things extend well to clients who are going through a relationship break down. So if you are finding yourself in this position consider whether the professionals you have spoken to have helped to give you those 3 things. Family practitioners also need to consider whether they are offering those 3 things. Do you talk to clients in a language they can understand? Would people recommend your services? If not maybe it’s time to re-think your approach.

Strange but Brilliant part III, A review of “Get Artisan: The skills based model to grow your business” by Neil Denny and Jason Dykstra

Neil Denny was kind enough to send me a copy of the book he co-wrote with Jason Dykstra, “Get Artisan: The skills based model to grow your business” some months ago and this review is long overdue. The reason for it taking me so long is not that the book is hard to get into or follow (quite the opposite) but because I keep getting pearls of wisdom and ideas from it. In the beginning I had naively thought that I would go through the book and work through it and then blog a review once I had finished with the book. This probably shows why I needed help from the book because, really, you should never stop thinking about how to grow, improve and shape your business.


When I first decided that I wanted to set up my own mediation practice I think my thinking went something along the lines of “I love being a mediator. I really think I make a difference when I am mediating. I want to do this all the time and not be a lawyer. I should do that”. When I started setting up my practice I looked at the principles and ethics that I wanted to encompass and tried to make sure that I was being true to those. Neil and Jason’s book takes that seed of an idea and develops it into a much more in depth and comprehensive business plan. They urge you to look at what you are really trying to achieve – what your business is really and truly about and then market it by explaining what you are doing – that is by explaining what your service achieves for people; not just by using the simple statement “I am a mediator”.

Using the book has really encouraged me to look deeply at what I am doing (and I am still doing that) and about what I am really hoping to achieve and offer. Where do I want to take this? What am I offering people? What benefit do people derive from using my service? There are also helpful exercises in the book to help you examine this in greater depth and to lead you forwards. I have simply written out the exercises as they are too small on the page to use. Some pull out worksheets of a sensible size would be helpful – either in the book or downloadable from a website.

The book is not a lengthy or waffly manual. It’s written as you might imagine Neil and Jason talking to you with straight talking advice and it’s very orientated towards making your business a success. It’s not just about fulfilling your own personal pipe dreams, but creating a thriving business. It is split into 8 easily digestible chapters and takes you through looking at your vision, your mission, your offering and looking at what your market is and how you will make yourself visible. There is also a form for an annual forecast planner and a monthly review – the subject of income is a large thorn in the side of the would be DR practitioner (and especially mediators given the current downturn) and one that cannot simply be ignored.

When you start your own practice it can be a lonely business and there are lots of decisions to be made. It can feel daunting and lonely at points. I can honestly say that reading the book made me feel that I’d been a bit naive about how hard it might be setting up a mediation practice (of course no one could have quite predicted the scale of the slump in mediation referrals). Should I happen to be in possession of the Tardis then I might consider going back and handing myself a copy of this book before I embarked upon setting up the practice. But I do also believe that journeys are learning curves of the most important kind. We learn more by living things than reading about them – but some helpful, sensible and focussed advice along the road is a must. For that reason I would recommend this book to anyone contemplating travelling the road of setting up their own DR practice (or in fact any other sort of business as the lessons from it will be applicable to all). After all if you decide to travel that road you should do it, and do it well.

Mediation 2014: Will it be a happy ending?

On the face of it there is much to be positive about in the field of mediation this year. Simon Hughes was appointed Justice minister in December with responsibility for mediation and the family courts. As a barrister by training, and given his political reputation, this has been received as good news amongst family lawyers I have spoken to. The Children and Families Bill will see MIAMS finally become properly compulsory. We have also headed into this New Year off the back of a DR week when much was done to promote Dispute Resolution, and especially mediation. Shortly after this all family mediators received a briefing note from the judiciary explaining what the judiciary are doing to promote mediation. So it seems that the message that we are serious about this may have made it through.

Yet you can forgive those working in mediation for not hanging up the bunting just yet. This has been a long road and there has been much talk about mediation becoming the norm for some time. As the year unfolds we will see how much the judiciary are doing to raise awareness of mediation. I would be interested to hear people’s experiences in the courts. It is not always seen as easy to promote mediation when the parties are at the court door. Positions are entrenched and parties are resigned to the fight. I do, however, think there is opportunity at court. As relations between a separating couple deteriorate and they resign themselves to court, each person feels hurt and wronged. Each person harbours a hope that by going to court it may alleviate that hurt because the judge may well recognise just what an awful time they’ve had, and how they have really tried to sort things out. Even though a good lawyer will have explained that it is not about that I believe people still harbour this hope, and I say this as someone who was a family lawyer for 12 years.

Assuming that matters do not settle at the first hearing, both parties then see what the road ahead looks like. It can look long; it definitely looks stressful; and they can’t even think about how much it will cost. When looking at all this a judge giving a sensitive, impartial and well time explanation of what mediation is, and suggesting it as a realistic option, may well steer that couple down a different path, which could dramatically change their ability to communicate in the future. We all know how important that is where there are children involved.

I also think lawyers need to be sensitive to when mediation is explained. When a couple are becoming entrenched in their positions and issues are cropping up by the day, explaining the court procedure and throwing in “oh and you’ll have to try mediation” is unlikely to get them on board (and sadly I know people that still do that). If all the options are explained at the outset then the client is going to make a much informed choice about which one might work. They don’t have to stick with it and as things change they can try other options. But bluntly if you don’t make things look attractive then people won’t bother. It won’t see you lose work because a good mediator will work with you. If the client thinks you’ve really helped them then they are much more likely to recommend you.

In saying that the judiciary and lawyers need to think about how they get people on board with mediation, I am not in any way saying that mediators should sit back and wait for the work to roll in. Far from it – because, let’s face it, it won’t. We know what mediation really is; we know how it works; and we know what it can do. So we are best placed to shout about it – to lawyers, to judges AND, crucially, to the general public. If we all do that then we couldn’t we really put mediation on the map this year? Imagine what we could achieve if the judiciary, lawyers and mediators all did a little bit more than they are doing now?