Mediation

[Enabler]

You couldn't make it up...

Call bank mortgage expiry team to ensure that left hand is talking to right hand and they see the approved replacement mortgage (in single name from joint name). They confirmed they see it. The representative then says "I'll extend the existing mortgage for 2 months to give you some time for the new mortgage to process... oh hang on, actually I'll give you a year under existing terms because of some FCA guidance we have received"... this is what we asked for 6-9m ago, and only now that I have a replacement mortgage set up will they extend. Rational, yes, annoying, yes, relief and in my favour, yes.

New mediator looks like next week.

New-Life

[Skip]

New mediator looks like next week.

What is the plan/goal for the mediation?

What has the mediator communicated?

[Enabler]

I picked the more punchy mediator out of the selection of 3. It's a risk in as much as she could be "punchy" with me as well as my W, however she seemed more no nonsense than the other 2.

I have a prelim meeting with mediator next week.

The aim is to get this to a reasonable conclusion. I believe that all parties are willing to do that now as long as they have confidence in the person leading them to that point. I guess she lost confidence in the last guy and I can't see any discernible reason why. I talked through my concerns with the mediator about whether a better option would be 2x Lawyer and 2x Client and her response was that it was an option, a very expensive option and one where she wasn't likely needed as that would make 3x Layers and 2x clients and she'd be surplus to requirement.

[Skip]

I talked through my concerns with the mediator about whether a better option would be 2x Lawyer and 2x Client and her response was that it was an option, a very expensive option and one where she wasn't likely needed as that would make 3x Layers and 2x clients and she'd be surplus to requirement.

New-Life, was this really said?

1. In most cases, lawyers are present for a mediation. 2. Mediation is viewed as the lower cost option to going to trial.

The reason lawyers are present is so that they can protect the interest of each party. This is especially important when the parties have little experience in law concerning the matter at hand or, the matter at hand itself.

It might help to read the history of the Woolf reforms’ (UK).

You may want to ask this question... if you reach an agreement, who is going to execute and file the legal paperwork?

You may also want to ask this question... if one attorney executes the paper work, will you both need to sign an acknowledgement that you did not have legal representation?

And lastly, if you involve two attorneys after you reach a tentative agreement, what is the risk that her attorney will advise her to renegotiate because she can get a better deal?

This is why it helps to have attorney's in the process. They work out the legal  minutia with the mediator at the same time as you and wife sort things out.

[Enabler]

   1. In most cases, lawyers are present for a mediation.

Maybe in the US but not in the UK. Yes there is a situation where mediation happens lawyer to lawyer but that's not what we're talking about here. "In most cases" in the UK you sit down with a specifically trained individual who is trained to guide a couple neutrally through the process of divorce. In some cases this doesn't work and cases go to court. It is a legal requirement for ALL divorce cases to have written evidence that they have attempted mediation prior to going to court (Likely as a product of the Woolf reforms). It is rare that lawyers will be involved in family mediation sessions in the UK.

1) You may want to ask this question... if you reach an agreement, who is going to execute and file the legal paperwork?

2) You may also want to ask this question... if one attorney executes the paper work, will you both need to sign an acknowledgement that you did not have legal representation?

3) And lastly, if you involve two attorneys after you reach a tentative agreement, what is the risk that her attorney will advise her to renegotiate because she can get a better deal?

1) I have discussed that already. The mediator (trained and practising lawyer) will send a memorandum of understanding to each of our solicitors. One  will be chosen to draft the agreement based on the memorandum of understanding. The 'Order' will then be reviewed by the other parties solicitor and amendments made (if any). Both myself and my wife will sign and this is lodged with the court for their signoff.

2) By the fact that it is drafted/reviewed by both solicitors we will both have received independent legal representation, however the mediator is already aware and encouraged we both have independent legal counsel. 

3) There is always that risk. That risk exists years down the line if my W suddenly decides she wants a better deal. I am not in a position financially, nor is the family situation with children involved conducive to a clean break divorce ex maybe on the capital front. The idea of having a trained mediator who is a practising lawyer is that the settlement reached is one that would not only reasonably satisfy the individual parties but also satisfy the court and independent legal council.

[Enabler]

https://www.familymediationcouncil.org.uk/wp-content/uploads/2018/11/FMC-Code-of-Practice-v1.3-November-2018.pdf

Page 11 of the code of conduct

8.15 Mediation meetings are commonly conducted without lawyers present.
However, solicitors or counsel acting for the Participants may be invited to
participate in the Mediation process and in any communications if the
Participants agree and the Mediator considers that it would be appropriate.

[ForeverDad]

Whether lawyers can be present in the USA depends upon the state.  My mediation attempt was with just mediator and the two spouses.  There are recommendations often mentioned here on what to do if lawyers cannot be present.  The top two I recall are (1) to contact your lawyer or other supporter during restroom breaks and (2) do power/affirmation breathing or moves also during breaks.

[Enabler]

Thanks ForeverDad, I’m not sure there’s going to be any breaks as it’s only a couple of hours... unless someone calls a timeout. One good thing is that these will be done on Zoom so I’ll have access to a lot more data on my work PC (4 screens) than would be reasonable in a meeting room. I’ll be sure to look up the breathing as I’m sure there will be some very tense moments.

I expect an attempt at “surprises” in the first session... best to plan for the worst and hope for the best.

New-Life

[mart555]

FWIW,  after a full day of mediation with lawyers + mediator my ex and I came to an agreement regarding alimony / spousal support. She wanted to sign, and so did I but the mediator said "It's been a long day for her and she has BPD, she shouldn't sign when exhausted so she can sign Monday".  Well BPD being BPD, of course it wasn't signed. She wants to go back to mediation to re-discuss the agreement because she doesn't like it at all.

Don't get your hopes up.  What happened in my case was what I had predicted but my lawyer was still surprised. 

[Enabler]

So, first mediation session with new mediator. I wasn't expecting much to be different and that's exactly what I got. There was some progress but I figured that the first session would be getting up to speed.

There was some very useful information that came out of the session on treatment of spousal income vs benefits (an issue with regards to how Universal Credit treats Spousal Maintenance).

My W seems more and more entitled and entrenched in a Goldilocks idea that she is going to be provided a risk free, all paid up life with money in the bank and a lovely cheque each month. I really really wanted the mediator to burst that bubble but that's not how they operate. My W's reluctance (and associated reasoning) to get any kind of meaningful mortgage which is the backbone of her claims she needs more capital, would be comical if it wasn't such a serious amount of money (and she's very serious about it). She's been given homework to do as have I. I might well try and do her homework for her as well since I know she will try and low-ball the information e.g. What's her true mortgage capacity and cost of the associated mortgages.

Grit teeth, don't fuel the fire and wait for mediator #2 to massage her into position. It wasn't hopeless though.

NL

[Skip]

Can we get a more clinical update on what transpired...

[Enabler]

There are a few issues which stem from my W wanting me out of the family home... a family home that D12 refuses to leave. W's answer is, sell the family home even though 4 out of 5 of us want to retain it and it is viable under the right deal. But W believes ((I think) that if that happens D12 will never stay with her.

So, W has defined her reasonable housing needs in her initial proposal back in Sep. I used those reasonable housing needs, her income and other entitlements and her projected expenditure to create a deal that met those needs. Based on her income, state benefits, and the income I might provide to bridge income/expense gap, I established a Mortgage borrowing capacity amounts and got an "agreement in principle" (pre-stage to full mortgage application if it's different over the pond). So, I proved out (as much as I could) that she could borrow £160k, meaning 50% capital and the mortgage would meet her self-defined reasonable housing needs. UK law says that you should start with 50/50 capital split and only deviate if there is significant reason (namely, undue hardship) to do so.

Factoring in the running costs of a 7yr fixed mortgage (nice and prudent and safe for medium term future... so not short term variable as I could have done) to her expenses I derived a spousal maintenance that bridged the new income/expense gap. Some of her expenses were unreasonable such as 2k a year on school trips so I pared those back but nothing too close to the bone and there was plenty of scope for her to spend more money in some areas and less in others and have a degree of choices.

Anyway, she decides that she doesn't want to utilise her borrowing capacity of 160k, she wants to be mortgage free, or have a token £50k mortgage. Her stance is it will be too risky and "what if NL loses his job"... her arguments were a little bit tenuous. Taking that argument for example, the cost of a 160k 25yr term 7yr fixed repayment mortgage is ~£650 a month. Her salary is £1150, child benefit is £219, Universal credit is £650... so lets say roughly £2k a month income assuming I pay her nothing. In desperate times her mortgage repayments still only represents 32.5% of her income... worst case scenario. In my proposed scenario it represents 20% so not at all massive. Plus, the mortgage would represent 29% LTV on the property so again, tiny in comparison to most of her peers. I am not sure whether she has been advised to use this as a negotiating lever, or whether she just feels this is appropriate. She refuted my claim that she could get the mortgage I got an AIP for and said that her advice was that she could borrow no more than 100k and even that was far far too risky for her and banks would be pushed to lend that. She was told by the mediator to go and investigate her borrowing capacity more... although I suspect it's not her borrowing capacity or affordability that's the problem, it's her willingness to utilise it.

There a bit of a grey area in the Uk at the moment with regards to universal credit. UC replaced income support and a collection of other benefits. These other benefits didn't take into consideration unearned income such as spousal maintenance, they just looked at your salary. UC takes into consideration spousal (for every £1 you get you lose £1 of benefits) and ignores child maintenance. So, for any couple needing to pay spousal there's an incentive to look towards paying over the odds on the children and nothing on Spousal... such that the recipient can still receive UC. In effect to pay £1 of spousal you have to chew through £650+ of UC benefits i.e. costing you £651. My wife's belief that it would be okay as part of the deal to have a slush fund of >£16k would also inhibit her from claiming UC. So, her plan was that she wouldn't be claiming for UC and that I would be bridging the full gap between her expenses and her income + child benefit (separate benefit for all kids). I didn't have that plan at all. The mediator was very helpful (as a practicing lawyer) in explaining this and also having a solution. The risk from my W's perspective of lumping all payments in favour of the kids in the consent order is that the family courts only have jurisdiction for 1yr post divorce, then all child payments are resolves by the Child Support Agency (CSA). At this point I could go to the CSA and say "I'd like to have that reviewed please" and they will do a review and deem me to pay considerably less (basically ex the spousal payment we lumped into child payment). To get around this, it has been suggested that we do a "Global Order" which defines the total amount payable. If I go to the CSA and have the number adjusted, the money slides across to spousal but the total stays the same. I guess this will stuff my then Ex W's UC claims, BUT why would I do that as I would still be paying the same amount to my W, that would just be malicious. The mediator also side swiped any moral reasons my W had for claiming benefits in as much as it's her choice not to claim but they will be factored in regardless of her desire to claim.

I believe my wife's feeling is that she is entitled to a house fully paid off, money in the bank, half the pension and a nice income from me and only me. The fact is she is 41 years old, she has 20+++ years of a working career left which is more than she worked in her life so far. She argued that she doesn't have as much earnings capacity as me, however I would argue that I have little to no room for upside income growth, I'm at the ceiling, whereas she has a huge capacity to grow her income not only in the short term but certainly the medium to long term. She seems entrenched in a genuine belief that it her rite to be "looked after" and made 100% secure by me, despite making choices to emotionally, physically and legally separate herself from me.

Better?

NL

[Skip]

It sounds like is was a more productive session than the others. True?

[mart555]

I believe my wife's feeling is that she is entitled to a house fully paid off, money in the bank, half the pension and a nice income from me and only me. The fact is she is 41 years old, she has 20+++ years of a working career left which is more than she worked in her life so far. She argued that she doesn't have as much earnings capacity as me, however I would argue that I have little to no room for upside income growth, I'm at the ceiling, whereas she has a huge capacity to grow her income not only in the short term but certainly the medium to long term. She seems entrenched in a genuine belief that it her rite to be "looked after" and made 100% secure by me, despite making choices to emotionally, physically and legally separate herself from me.

Man that sounds so much like mine.. as soon as it looks like we'll reach an agreement her fear of running out of money comes out, never mind the fact that she has a guaranteed income until 65. It drives me nuts and I don't see the light at the end of the tunnel.

[Enabler]

It sounds like is was a more productive session than the others. True?

There's ben a years gap with plenty of learning touch points along the way where she has been forced to investigate things due to the choices she has made (such as moving out). So I think any hint of progress was more a sign of the things that we have both learnt and how those choices have forced decisions... e.g. My W decided to move out the house, so therefore keeping the house is no longer considered an option for her... and that now drives other lines of questioning.

She still doesn't seem to have a plan, a plan that she's willing to structure a future around... I dunno, something like "I want this house, I want a black Labrador... hmmm yes that will be nice. I don't like the fireplace so I'll rip that out and put a logburner in there, hmmm yes, the table I have will go over there and D7 will love that bedroom." If she has she hasn't tabled it. What she has tabled is something that would justify her getting X amount of the capital. This might be "smart" but, the problem with this is that she's still looking to me to define the outcome that she wants rather than defining her own outcomes and the goalposts keep moving. She still believes that she should be taken care of rather than looking for a life where she is self sufficient and self defining. She believes she has a right to be protected from me losing my job, yet shows no concern about me if I lose my job, yet realistically she is best positioned to protect herself from any of my lost income by simply not being reliant on me!

The more serious discussions are clearly still to come, one of which will be that the courts are less inclined to offer long term support (longer than 5yrs) for spousal maintenance and appear to be keen for each party to reach a new reality as quickly as possible as long as there is minimal hardship. I think she wants (and seriously expects) a never ending life support machine.

NL

[Skip]

What was the homework?

[Enabler]

Homework is for me to look into legalities of the global order for myself.

She has to look into mortgage capacity and start to validate that... however, since she has a vested interest in minimising her mortgage capacity I will likely be doing that homework as well.

NL

[kells76]

Has the mediator said there are "consequences" or described an "outcome" if either party does not do the assigned homework?

[Enabler]

No, the only consequence would be that mediation wouldn't work and it would be a waste of everyone's time and money. Mediation is voluntary, and therefore it would be challenging to apply penalties to that process. I am less worried about her doing the work than I am the work she does is of any validity. The validity of her mortgage capacity for example is going to be predicated on what type of information she provides and what type of lenders she approaches. She wants a low mortgage capacity as she has already expressed a desire to have no mortgage. Therefore I will inevitably canvas lenders myself on their income type criteria (do they accept benefits) and typical income multiples.

[kells76]

No, the only consequence would be that mediation wouldn't work and it would be a waste of everyone's time and money. Mediation is voluntary, and therefore it would be challenging to apply penalties to that process.

Makes sense; not surprising.

I am less worried about her doing the work than I am the work she does is of any validity.

OK, that is something to work with. You're fairly sure she will do the HW and bring "something" to the table. That is fine and is "playing by the rules" of mediation.

Core concern is that she is bringing a fantasy ("she has already expressed a desire to have no mortgage") versus something concrete/real?

Then you don't have to agree to it... right?

If it were me, and I were fairly certain that the mediator was a reasonable, logical, in-touch-with-how-real-life-works type person...

Sure, I'd do "her" HW, too, so I could get an idea of what's reasonable.

I wouldn't "play that card" on the mediation table, though. I.e., I wouldn't advertise or spill that I had done the HW too and I had found that her answers were crazy fairy tale land.

I'd just wait my turn, let her present whatever unicorn zero mortgage idea she has, and when it was my turn, "play by the rules" and say "no thank you, how about X offer instead". And X offer would be based on my research.

I'd suggest playing it "close to the chest" on doing her HW, too. Sure, do it, no issues there, but it doesn't have to be brought up... keep it quiet. That's my take on how to keep this mediation session "on the rails".

Best;

kells76

[Enabler]

I have been too willing to put my homework on the table in the past which on the one hand has burst bubbles, but on the other hand has upped the animosity. It's a bit like the time we painted the house, she spilt so much paint on the floor and did such a poor job it almost couldn't have been anything other than intentional... as soon as I pointed this out the brush was downed (in fury) and that was the last i saw of her.

[Skip]

I will inevitably canvas lenders myself on their income type criteria (do they accept benefits) and typical income multiples.

Makes sense.