Wednesday, June 29, 2011
Wednesday, June 15, 2011
Timing and Family Mediation
Timing is important in family Mediation.
Parties are at times more ready to achieve a resolution than at others.It is important that mediators are aware of the impact and importance of timing and the emotional aspects of separation.
Fisher and Ury “Getting to Yes” (1997) speak of the importance of “getting into step” with the other person and timing is an aspect of this.
Much has been written about the psychological aspects of divorce, the loss it involves and the grief process.
Many writers have interpreted separation and divorce in terms of moving through a number of overlapping stages not unlike those described by Kubler-Ross in her classic book “On Death and Dying” as denial, anger, bargaining, depression and acceptance. These days it is more common for writers to describe the parties as cycling back and forth between the emotional stages rather than passing through them in sequence.
I always recall a matter where I represented a party and the other party had been particularly difficult to negotiate with in the course of a drawn out and conflicted divorce. Eventually, after a successful mediation the other party said to me; “Mr. Emerson, you must have thought for a long time that I was a proper so and so to deal with, but I just wasn’t ready”. This was a very helpful lesson for me in understanding the importance of timing in achieving an outcome.
Mediators need to be sensitive to these issues and take account of where parties are in the grief process.
Mike Emerson
Brisbane mediations
Parties are at times more ready to achieve a resolution than at others.It is important that mediators are aware of the impact and importance of timing and the emotional aspects of separation.
Fisher and Ury “Getting to Yes” (1997) speak of the importance of “getting into step” with the other person and timing is an aspect of this.
Much has been written about the psychological aspects of divorce, the loss it involves and the grief process.
Many writers have interpreted separation and divorce in terms of moving through a number of overlapping stages not unlike those described by Kubler-Ross in her classic book “On Death and Dying” as denial, anger, bargaining, depression and acceptance. These days it is more common for writers to describe the parties as cycling back and forth between the emotional stages rather than passing through them in sequence.
I always recall a matter where I represented a party and the other party had been particularly difficult to negotiate with in the course of a drawn out and conflicted divorce. Eventually, after a successful mediation the other party said to me; “Mr. Emerson, you must have thought for a long time that I was a proper so and so to deal with, but I just wasn’t ready”. This was a very helpful lesson for me in understanding the importance of timing in achieving an outcome.
Mediators need to be sensitive to these issues and take account of where parties are in the grief process.
Mike Emerson
Brisbane mediations
Tuesday, June 14, 2011
Mediation - around the table or in separate rooms?
People attending mediations often say they are nervous about sitting in the same room as the other party and ask about mediating from separate rooms or via a "shuttle" process.
In the majority of cases, even where there is considerable tension between the parties, I encourage them to at least commence their mediation around the one table.
The reasons include the following:
In my experience, it is generally beneficial to the mediation process for the parties to hear each other's concerns and issues directly;
They can each be more confident that the other party has in fact heard them;
They each hear an unabridged version of the other's views and not what the mediator has paraphrased;
By "breaking the ice" between parties who may not have spoken directly to each other for some time, the opportunity arises in many instances for some helpful discussion;
Brainstorming of options can be facilitated more effectively when the parties are in the same room;
Having a mediator or mediators present provides a safe environment in which to set the scene for an ongoing relationship between the parties (for example, when co-parenting after separation or divorce or needing to continue as colleagues in the workplace);
Some release of negative emotion is more likely if both parties are in the same room and when managed by a skilled and sensitive mediator this will often clear the way for more helpful and productive negotiation of solutions;
There is less chance of parties becoming suspicious about an alliance forming between the mediator and the other party;
The mediator's time is saved as he or she does not need to run between rooms and parties from the outset of the mediation;
If either party finds it too difficult to remain in the same room as the other party then it is a simple matter to change to shuttle mode at any time;
Parties are often most grateful for the opportunity to deal directly with the other party, whilst being supported by an even handed process.
Denise Britton
Co-Principal Brisbane Mediations
In the majority of cases, even where there is considerable tension between the parties, I encourage them to at least commence their mediation around the one table.
The reasons include the following:
In my experience, it is generally beneficial to the mediation process for the parties to hear each other's concerns and issues directly;
They can each be more confident that the other party has in fact heard them;
They each hear an unabridged version of the other's views and not what the mediator has paraphrased;
By "breaking the ice" between parties who may not have spoken directly to each other for some time, the opportunity arises in many instances for some helpful discussion;
Brainstorming of options can be facilitated more effectively when the parties are in the same room;
Having a mediator or mediators present provides a safe environment in which to set the scene for an ongoing relationship between the parties (for example, when co-parenting after separation or divorce or needing to continue as colleagues in the workplace);
Some release of negative emotion is more likely if both parties are in the same room and when managed by a skilled and sensitive mediator this will often clear the way for more helpful and productive negotiation of solutions;
There is less chance of parties becoming suspicious about an alliance forming between the mediator and the other party;
The mediator's time is saved as he or she does not need to run between rooms and parties from the outset of the mediation;
If either party finds it too difficult to remain in the same room as the other party then it is a simple matter to change to shuttle mode at any time;
Parties are often most grateful for the opportunity to deal directly with the other party, whilst being supported by an even handed process.
Denise Britton
Co-Principal Brisbane Mediations
Transition to Retirement Pensions and Mediation
In recent weeks, I have been involved in two mediations where a solution was achieved because of the availability of Transition to Retirement (TTR) Pensions.
Both were relationship mediations.The first, which I convened, involved a small asset pool with no cash and no capacity to borrow.The second,where I represented a party, involved a much larger pool with substantial superannuation, but again no cash and no capacity to borrow because of the absence of security.
In each case a settlement was possible because of the capacity of a party to access a TTR pension to pay cash to the other party.
Parties over 55 who are still working can access their super by means of a TTR providing the Superannuation Trust Deed allows for same as otherwise an amendment to the Deed is necessary.
My understanding is that they must access at least 4% and not more than 10% of the total sum held in any financial year but advice should be sought on these limits.
After age 60,provided the person has set up the TTR pension which is simple to do,then withdrawals are tax free.
Withdrawals are not restricted to weekly sums but can be in larger amounts provided the annual limits are not exceeded.
I would strongly suggest that if you are within the relevant age bracket, that you see your accountant regarding implementation and conditions of a TTR pension.
The accountant can also advise on any applicable tax rates and limits which may apply.
This is a simple way of thinking outside the square to reach a solution at mediation.
Mike Emerson of Brisbane Mediations
Both were relationship mediations.The first, which I convened, involved a small asset pool with no cash and no capacity to borrow.The second,where I represented a party, involved a much larger pool with substantial superannuation, but again no cash and no capacity to borrow because of the absence of security.
In each case a settlement was possible because of the capacity of a party to access a TTR pension to pay cash to the other party.
Parties over 55 who are still working can access their super by means of a TTR providing the Superannuation Trust Deed allows for same as otherwise an amendment to the Deed is necessary.
My understanding is that they must access at least 4% and not more than 10% of the total sum held in any financial year but advice should be sought on these limits.
After age 60,provided the person has set up the TTR pension which is simple to do,then withdrawals are tax free.
Withdrawals are not restricted to weekly sums but can be in larger amounts provided the annual limits are not exceeded.
I would strongly suggest that if you are within the relevant age bracket, that you see your accountant regarding implementation and conditions of a TTR pension.
The accountant can also advise on any applicable tax rates and limits which may apply.
This is a simple way of thinking outside the square to reach a solution at mediation.
Mike Emerson of Brisbane Mediations
Thursday, June 9, 2011
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