The Mediator's approach to family-related issues
This page is about family disputes of every sort and not only about disputes relating to divorce and separation.
Personal and family-related disputes are similar in many ways to business disputes.
Mediation of family related issues usually requires three to eight hours either at the home of one of the family members or at the family’s business premises. Of course there are plenty of alternative possible venues.
Disputes within a family environment often involve many people. In such a case, the mediator will want to meet all of them and hear all of them speak about the dispute. It’s important that he understands the different positions taken and who supports whom. That understanding will enable him to recommend the best way forward – subject of course to your instructions.
Now here are some examples.
A mis-spent life interest in an estate
Your father and mother divorced long time ago. Your father then married Julia. Your father died 10 years ago leaving most of his estate to Julia for her life and then to you and your siblings.
Julia is now old and behaving in strange ways. Her various activities are decimating the value of her life interest, to which you and your siblings are ultimately entitled.
Julia was taken in as part of your family many years ago but she does have her own close relatives too. You have talked to them about her condition but they just think it is all rather funny. You really do not want to use solicitors to issue a claim.
First, you may need to take a strong line in a face-to-face discussion with Julia’s relatives. When they know that you are serious about taking positive action to protect what is truly yours, it is likely that they will agree to mediation. You should arrange a live mediation meeting.
Julia’s relatives will respond to the formality of a formal mediation meeting by taking a more serious and thoughtful approach than they have done to date. The Mediator will certainly help them to understand the financial loss to you that Julia has been causing.
The Mediator will assist each side to make their respective case clear and simple. He will put it to Julia’s relatives in a way that makes it difficult for them to avoid a sensible response. It is likely that they will see the problems and some settlement will be achieved.
It is important in the circumstances to conclude the mediation process with a signed agreement committing them to very specific action. You have already discovered that nothing will happen otherwise.
Disputes between owners of a family business
You operate a family business – the directors are mostly family members but the shareholders are more widely dispersed. Petty disputes constantly get in the way of efficient management, let alone expansion.
First, you need to decide whether you want the Mediator to deal with a particular dispute between two or more parties or alternatively to act more in the capacity of an informal arbitrator, helping you with proposals in connection with the basic power and management structure.
On one basis, the best way forward might be to book a traditional one day mediation meeting with the traditional mediation process. to sort out the substance of your conflict and identify who is affected by each strand of it.
As the parties have at least some interest in common, a live mediation could take place on the company’s premises, when several interested parties could discuss options in the presence of the Mediator. Alternatively the Mediator could shuttle between two or more parties in the traditional way.
One thing is for sure – boardroom and shareholder agreements are best mediated personally, around a table. Of course, that does not prevent one or more parties from talking to the Mediator confidentially before or during the proceedings.
The alternative procedure for a dispute involving directors and managers of the business is to start with a traditional mediation, as outlined above, but then instruct the mediator to attend critical board meetings for a month or two in the capacity of a referee. This will enable an element of mediation of minor issues as they arise. It will also keep the playing field level by preventing a strong personality from taking control unreasonably. (Many company disputes start in that way).
The horse was not sound when sold
You have owned the 10 year old horse for six months. Unfortunately you did not obtain a vets certificate when you bought it but you do have copies of an email thread in which you asked the seller many searching questions and to which she gave you replies which appeared to be acceptable.
For a few weeks you rode him in an arena with a rather soft surface. Now you want him to work outdoors on hard ground. You cannot be sure he is lame, but he seems to flinch when you first lay the saddle on his back. In addition, he sometimes seems to be uncomfortable at sitting trot.
You have now obtained the veterinary report that you wish you had obtained six months ago. The vet accepts that there is definitely something wrong with your horses back. He suggests a kissing spine or possibly some slight damage due to him having been raced at a young age.
Now you remember that the seller did mention in the advert that he had been raced briefly as a two-year-old. You carefully concoct what you think is a suitable letter which makes clear that you will issue a court claim if she does not repay your £15,000 purchase price and another £10,000 for maintenance and wasted time spent.
She denies that anything was wrong with the horse when she sold it to you and suggests that you are now blaming her for either damage that happened whilst in your ownership or some long-standing inherent defect which she could not have known about and about which she gave no warranty.
After increasingly angry correspondence between you and her, you persuade her to agree to mediation.
As an experienced former litigator, the Mediator well knows that this case will depend on what exactly the contract consists in. He needs to investigate exactly what was said and written before the horse changed hands. He also needs to consider that veterinary evidence very carefully.
The mediator will probably tell both sides very clearly that bring or defend a claim in the County Court is likely to incur costs way beyond the value of the claim. However, he also understands that this is a case which seems to be important as a matter of principle, to both parties.
Because both of you are well known in the equestrian world, it is likely that many people will use social media to take sides with accusations of dishonesty. That is not in the interest of either of you.
At the request of both parties, the Mediator agrees to have a look at the horse and encourage the parties to agree settlement terms over a cup of tea in the seller’s kitchen.
The Mediator absolutely refuses to be drawn on what he thinks might be wrong but it is clear to both of the mediation parties and to the Mediator that their horses back is damaged and, at the age of 12, is unlikely to improve.
The buyer continues to be extremely angry since she has now spent many hours feeding, maintaining and training the horse only to face having to have him put down. The seller is embarrassed and her attitude and demeanour suggest that she had an inkling that the horse was unsound at the time it was sold.
After three hours, the buyer agreed that any horse was a risky investment and that she should have covered herself with a vets certificate. The seller did indeed become anxious that her reputation in equestrian circles should not be damaged. Accordingly a financial settlement was agreed and both parties also signed confidentiality provisions drawn by the Mediator. Although this was a simple heads of terms document, it did not need fine tuning by a solicitor.
Poor investment advice
You are technically a consumer. You have a problem with your investment and pension adviser. This is not a situation where you can join some vast collective legal action. You reckon you have been very badly advised as to the level of risk you are happy with. You also think that your adviser was naïve as well as incompetent.
Your financial adviser may try to fall back on his contract with you when you probably accepted terms which he is now able to interpret as giving him more of a free hand than you intended.
He probably knows he should not have put you into teak forests in Brazil just because he was offered 25% commission. He is also fearful that at least his professional reputation, and possibly his freedom, would be at risk if the world knew that he failed to tell you how much money he would receive as commission.
As a result, he is substantially more worried about his professional reputation and what you might say to the world at large, than he is about losing a few thousand pounds to you in compensation. Actually, it was he who first suggested mediation to you.
First, the Mediator will need to put in enough time thoroughly to assess the detailed background story of each side and have a quick look at the contracts and the investments concerned.
Because the financial adviser’s position is so sensitive, the Mediator will choose to use a traditional mediation “shuttle” system rather than trying to settle it when the parties are talking around a table.
Although mediation is a process in which openness is regarded as an essential ingredient, the Mediator recognises that the adviser is unlikely to explain his full story, even to the Mediator. The Mediator must therefore sidestep that difficulty. He discusses all possibilities for settlement with each side. You are absolutely adamant but quite rightly reluctant to put out a large sum of money in a claim against an opponent who may well be wealthy enough to defend it.
After sensitive discussions between the Mediator and each party in turn, the adviser agrees to make full repayment. The mediator is under no obligation to tell you how or why your adviser came to that decision. Both sides leave the meeting happy with the outcome.
A difficult exit from a business owned with a friend
You have worked with Celia for the last 10 years in building a business together. You have no other relationship with her.
Celia now wants to leave the business and transfer her shares to another family member. That person is well enough qualified but you do not feel comfortable at the prospect of working with her in Celia’s place.
You are both directors of the company. You have received both salary and dividend over the last couple of years. A shareholders agreement was drawn when the business was set up. Since then several of the procedures set down in that agreement have been happily ignored by both of you. In any event it does not cover all of the possibilities to deal with conflict in a situation where each of you owns 50% of the shares.
This is a complicated situation. Although there are only two of you who are parties to the dispute, there are many angles to be sorted out. The Mediator will not be able to give you legal advice but will be willing to help you to assess all the issues you need to cover.
There are so many possibilities that there may be no alternative than to sit down with the Mediator and start talking. If either of you wishes to talk confidentially to the Mediator that should be perfectly possible.
The first mediation meeting is unlikely to conclude with an agreement, but rather with a list of possibilities for each of you to take away, consider and prioritise.
At a second meeting it should be possible to discuss firm proposals and reach agreement.