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Human Law Mediation Blog: Recent Posts

Tuesday June 30, 2015 at 1:40pm
One of the issues which people have once they have done a will is where to store it.

In the past people have often left them with solicitors.

This is not necessarily a good idea.

I have advised a number of relatives of deceased people who cannot find the will which was stored at solicitors.

The will has gone missing.

The reason often is that solicitors come and go, and once they fold or merge that treasured will is lost in the process.

And despite the regulation, solicitors effectively let their clients down and the relatives.

The solution if you are doing a will…..

Make copies of the will and give them to the executors. A copy is not valid but in a worst case scenario can be used evidence to get probate granted.

Keep the will in a safe place and let your executor(s) know.

Pay £20 and store the will forever at The Principal Registry of the Family Division, 7th Floor, 42-49 High Holborn, First Avenue House, Holborn, London, WC1V 6NP , Email- londonpersonalapplicationsenquiries@hmcts.gsi.gov.uk , Probate helpline: 0300 123 1072 Enquiries: 0207 421 8509, 0207 421 8500

These steps will avoid the problems of leaving the will with a solicitor.

Friday June 5, 2015 at 3:00pm
All this talk about FIFA paying the Irish 5 million euros to avoid them taking legal action on the back of "strong legal advice" has made feel a little inadequate regarding the quality of legal advice that I am giving my clients. Like the FAI's lawyers must feel like a million dollars, sorry, Euros for helping their client obtain such a good outcome. I do the hope the law firm negotiated some kind of bonus arrangement into their terms of business.
Friday May 29, 2015 at 11:38am
Recently, the leading judge, the president of the Supreme Court has made some interesting comments on use of mediation.

Lord Neuberger, in a speech entitled ‘a view from on high’, praised mediation for being quicker, cheaper, less stressful and less time-consuming than litigation. He also said potential outcomes were more flexible and more likely to leave both parties emerging as ‘winners’.

He has a point and as he said In many civil and family cases proper litigation would lead to costs and time being disproportionate to the value of the case. He has referred what he calls an ‘almost perfect storm of financial difficulties’ that could deprive ordinary people from access to justice.

Frankly the absence of inexpensive legal costs, absence of legal aid and the rising Court fees are denying people access to justice. The judge is right.

And, mediation can be an effective way of bridging the gap.

What I can say being an experienced mediator and lawyer, is finding an effective mediator is not necessarily straightforward(particularly when the whole business model of the mediation "profession" is fundamentally flawed) and parties do need help to negotiate effectively.

These variables as well as what the judge said are barriers to justice.

By helping parties negotiate effectively and finding a good mediator will help justice be obtained.

Do this, and you can get a solution which will beat going to Court.

Friday May 29, 2015 at 11:27am
Recently I have been involved in advising a number of individuals in probate disputes; what I have found as a theme is that often it is a dispute between warring executors. Typically (but not always) it will be siblings who just do not get on.

The problem which the executors face is that once they do not get on and whoever is right or wrong, if the estate becomes deadlocked it is very difficult to break.

One party can enter a caveat for little cost which acts a barrier to moving forward and whilst theoretically applications to the Court can be made to resolve this, the legal costs can be prohibitive.

What I do find surprising is the conduct of some law firms which can only be described erratic. Some act impressively and ethically in formulating their client’s position. They recognise the careful balance required between being assertive and being inflammatory.

Others take a different approach and fall victim to macho and at times ignorant conduct. This may be in part due to law firms suffering financial stress as it seeks to go on the no win/no fee route. A shame as it is their clients that lose just as much as the other party, if not more.

The solution is to be careful whom you appoint as executors and identify and deal with any possible risks beforehand.

Wednesday April 29, 2015 at 1:40pm
Tips for Successful Negotiations Described by one training organisation as the “skill that transcends all others”, negotiation, once mastered can help you achieve improved results in many different business and social situations. For lawyers and their clients in a dispute situation effective negotiation skills and techniques can be invaluable in reaching a settlement whilst also keeping legal costs under control. Here we offer some Do and Don’t tips for anyone involved in a negotiation. Follow this approach and your next negotiation could be a pleasurable experience, resulting in success.

What you must do for a successful negotiation

Be prepared

This may sound obvious but on a number of occasions I have conducted mediations as either a mediator or a solicitor and come across parties who have not really understood what is involved.

By considering the following points you can make sure you are prepared for an effective negotiation:

Goals: what do you want to get out of the negotiation? What do you think the other person wants?

Negotiating points: What do you and the other person have that you can trade? What do you each have that the other wants? What are you comfortable giving away?

Options: if you don’t reach agreement with the other person, what alternatives do you have? Are these good or bad? How much does it matter if you do not reach agreement? And what alternatives might the other person have? Relationships: what is the history of the relationship? Will there be any hidden issues that may influence the negotiation? How will you handle these? The consequences: what are the consequences for you of winning or losing this negotiation? What are the consequences for the other person?

Power: who has what power in the relationship? Who stands to lose the most if agreement isn’t reached? Possible solutions: based on all of the considerations, what possible compromises might there be? Bring the right people: only those who have confidence in the process or inadequate knowledge of the dispute are useful. Anyone else could harm your chances of getting the deal done. Keep reviewing the strength of your case: Whilst you are at the mediation or negotiation, keep assessing the strength of your case and seeing how the interaction is going.

Be realistic

Assess your strengths and weaknesses in the case. Your position in the negotiation will be advanced if you have an understanding of your "Best Alternative to a Negotiated Settlement."(BATNA) This represents what you will do if an agreement is not reached in a negotiation. Consider consequences of a failed mediation or negotiation. No matter how good a mediator is or how effective a negotiator you are, there is always the risk of a failed mediation. If you have considered your bottom line with thought, you can walk away without regrets.

Identify your legal and other costs

Before entering into any negotiation you need to gather the facts – but one crucial fact that is often neglected is the level of legal and other costs incurred. This is essential in helping to put a value on the case and bring a sense of perspective to the situation. In mediation the mediator will almost always get the parties to think about the level of legal costs incurred on the case, as a way of assisting a party in valuing a case. When putting a value on the case it’s important to consider the intangible consequences, such as loss of business opportunities that inevitably accompany the process of conducting litigation.

If you can, make first offers

There has been a fair amount of discussion on this but in my experience a party who makes a strong but realistic first offer is in a better position than one who does not. An aggressive first offer can work in your favour as one of the most effective ways to getting the most from your opponent. The main advantage is that it allows you to offer concessions and still reach an agreement that’s much better than your alternative agreement.

Do a risk assessment

Case analysis or what can be termed risk analysis is very important in a negotiation as it provides a framework within which one can negotiate a case. Without good case analysis, the negotiator does not have a compass and he or she will be ineffective. This is where legal skills can come to the fore and having a lawyer present is very useful.

Have the right attitude to the negotiation The way that you interact with the other side will impact how they interact with you. Remember the greatest impediment to settlement is the view that the case will not settle. Instead try to think of well-thought out proposals which can reach agreement.

What to avoid when negotiating

Don't treat a negotiation like a Court case

One of the biggest criticisms that I can level at lawyers during mediation and in fact in any negotiation is they often focus just on the law and they neglect the other dynamics of the situation. Whilst the law is important a point not to neglect is that you are attempting to reach a deal with another party not convince a 3rd party (namely a judge) of the merits of your case. In a negotiation you need to bring in empathy with the other party, consider reasonableness and bear in mind that you are looking for a win, win solution, not a win, lose one.

Don't be aggressive

The nature of the English legal system encourages one to be adversarial. Whilst it’s important to be firm in one's position, do not be so aggressive that you upset the other side so much that you jeopardize the chances of a deal being reached. All too often the reason a negotiation fails is that the parties are far too macho, they want to be right or score points, which all serves to wind the other side up and reduce the likelihood of an agreement being reached.
For professional help with your next big negotiation call Justin Patten, negotiator and professional mediator.

Wednesday April 29, 2015 at 1:23pm
We are moving closer to the general election and while lawyers as a group can vote any way, it is safe to say that the Employment lawyers will be praying for a Labour victory with their commitment to eliminate Tribunal fees.

There has been a 60% decline in the number of cases being heard since application costs of up to £1,200 were introduced in July 2013; Not good for employment lawyers' business.

Unison has been conducting a legal challenge to the law and recently more than 400 barristers have published an open letter to the justice secretary, Chris Grayling, condemning steep rises in employment tribunal fees as a “barrier to access to justice”.

It is the Labour Party who have announced that they would overhaul the system if they win at the election.

Little wonder, given the historic links between the Labour Party and the trade unions but this may be too late to save many lawyers as they seek to maintain their livelihoods.

On the positive side for employment lawyers it is nice for them that they can deal with an efficient Tribunal system where the telephone is picked up quickly by Court staff, Judges and staff are relaxed when you deal with them and if you want a Tribunal hearing you can get it quickly. In that respect, justice has been obtained.

Monday March 30, 2015 at 1:19pm

We are coming up to a general election and with respect to the Conservative Party it is highly likely that the Conservative Party will announce some form of inheritance tax (IHT) reform. Sensitive papers around the time of the budget revealed plans that would allow parents to pass a main property worth up to £1m to their children without paying any inheritance tax.

George Osborne has drawn up plans that would allow parents to pass a main property worth up to £1m to their children without paying any inheritance tax, according to Treasury papers leaked ahead of Wednesday’s budget.

The proposed measure would also reduce the inheritance tax bill on properties worth up to £2m by £140,000 and the Treasury analysis concludes that the scheme would “most likely benefit high income and wealthier households”.

According to the Guardian, the tax break would cost the Treasury nearly £1bn and is aimed primarily at southern propertied middle-class households.

This falls short of the previous pledge by the Conservative Party in 2009 to raise IHT threshold to £1million but is a step forward.

Beyond what is implemented by the Conservatives if they get back in, individuals can do some simple steps to mitigate IHT.New research has found that many life insurance policies could be liable to a big inheritance tax bill.

Legal & General's study of its own customer base found that over 90% of its customers with whole-of-life policies had done nothing to shield it from inheritance tax. The lump sum received from a life insurance policy counts towards a person’s estate when they die and is therefore liable for inheritance tax if over the tax-free allowance.

By writing a life insurance policy in trust, the amount the policy pays out on death can be paid directly to the trustees of the trust rather than the deceased’s legal estate. This means the proceeds won’t be taken into account when inheritance tax is calculated

The inheritance tax threshold in the UK for individuals is £325,000. Currently inheritance tax is due at a rate of 40% on anything above this amount.

Monday March 30, 2015 at 12:05pm
Described by one training organisation as the “skill that transcends all others”, negotiation, once mastered can help you achieve improved results in many different business and social situations. For lawyers and their clients in a dispute situation effective negotiation skills and techniques can be invaluable in reaching a settlement whilst also keeping legal costs under control.

In this month’s ezine we offer some Do and Don’t tips for anyone involved in a negotiation. Follow this approach and your next negotiation could be a pleasurable experience, resulting in success.

What you must do for a successful negotiation

Be prepared This may sound obvious but on a number of occasions I have conducted mediations as either a mediator or a solicitor and come across parties who have not really understood what is involved. By considering the following points you can make sure you are prepared for an effective negotiation:

Goals: what do you want to get out of the negotiation? What do you think the other person wants? Negotiating points: What do you and the other person have that you can trade? What do you each have that the other wants? What are you comfortable giving away?

Options: if you don’t reach agreement with the other person, what alternatives do you have? Are these good or bad? How much does it matter if you do not reach agreement? And what alternatives might the other person have? Relationships: what is the history of the relationship? Will there be any hidden issues that may influence the negotiation? How will you handle these? The consequences: what are the consequences for you of winning or losing this negotiation? What are the consequences for the other person?

Power: who has what power in the relationship? Who stands to lose the most if agreement isn’t reached? Possible solutions: based on all of the considerations, what possible compromises might there be? Bring the right people: only those who have confidence in the process or inadequate knowledge of the dispute are useful. Anyone else could harm your chances of getting the deal done. Keep reviewing the strength of your case: Whilst you are at the mediation or negotiation, keep assessing the strength of your case and seeing how the interaction is going.

Be realistic Assess your strengths and weaknesses in the case. Your position in the negotiation will be advanced if you have an understanding of your "Best Alternative to a Negotiated Settlement."(BATNA) This represents what you will do if an agreement is not reached in a negotiation. Consider consequences of a failed mediation or negotiation. No matter how good a mediator is or how effective a negotiator you are, there is always the risk of a failed mediation. If you have considered your bottom line with thought, you can walk away without regrets.

Identify your legal and other costs Before entering into any negotiation you need to gather the facts – but one crucial fact that is often neglected is the level of legal and other costs incurred. This is essential in helping to put a value on the case and bring a sense of perspective to the situation. In mediation the mediator will almost always get the parties to think about the level of legal costs incurred on the case, as a way of assisting a party in valuing a case. When putting a value on the case it’s important to consider the intangible consequences, such as loss of business opportunities that inevitably accompany the process of conducting litigation.

If you can, make first offers There has been a fair amount of discussion on this but in my experience a party who makes a strong but realistic first offer is in a better position than one who does not. An aggressive first offer can work in your favour as one of the most effective ways to getting the most from your opponent. The main advantage is that it allows you to offer concessions and still reach an agreement that’s much better than your alternative agreement.

Do a risk assessment

Case analysis or what can be termed risk analysis is very important in a negotiation as it provides a framework within which one can negotiate a case. Without good case analysis, the negotiator does not have a compass and he or she will be ineffective. This is where legal skills can come to the fore and having a lawyer present is very useful.

Have the right attitude to the negotiation

The way that you interact with the other side will impact how they interact with you. Remember the greatest impediment to settlement is the view that the case will not settle. Instead try to think of well-thought out proposals which can reach agreement.

What to avoid when negotiating

Don't treat a negotiation like a Court case

One of the biggest criticisms that I can level at lawyers during mediation and in fact in any negotiation is they often focus just on the law and they neglect the other dynamics of the situation. Whilst the law is important a point not to neglect is that you are attempting to reach a deal with another party not convince a 3rd party (namely a judge) of the merits of your case. In a negotiation you need to bring in empathy with the other party, consider reasonableness and bear in mind that you are looking for a win, win solution, not a win, lose one.

Don't be aggressive

The nature of the English legal system encourages one to be adversarial. Whilst it’s important to be firm in one's position, do not be so aggressive that you upset the other side so much that you jeopardize the chances of a deal being reached. All too often the reason a negotiation fails is that the parties are far too macho, they want to be right or score points, which all serves to wind the other side up and reduce the likelihood of an agreement being reached.

For professional help with your next big negotiation call Justin Patten, negotiator and professional mediator

Friday January 30, 2015 at 10:27am
In my capacity as a lawyer, negotiator and a mediator and from experience I think the best way to learn a new approach is sometimes to look at how not to do things.This is a case study below of an employment law/mediation issue I dealt with a number of years ago which I think is worthy of revisiting. Consider what happened here, and whether you are guilty yourself of making any of the same mistakes might help you develop your own positive approach to handling personnel or business disputes effectively.

Setting the scene
Some years ago a small five partner accountancy firm employed a newly qualified accountant, let’s call him David. Initially David did well, he seemed to fit in, he was good with clients and he worked hard. But towards the end of his first year with the firm, things began to go wrong. David started to make mistakes, he was sometimes late for work and the odd client complained about calls not being returned. In particular his relationship with his supervisor, John deteriorated.

Turning a drama into a crisis
By following these simple, and all too common, steps a small matter of supervision and performance management became a matter for an industrial tribunal.

‘I’m too busy to deal with this’
Any business relationship requires nurturing. That between a member of staff and a supervisor needs time and attention. When it was quite clear that something was not right with David, John was too busy focusing on his own work to do anything about it. Some supervisors might take the view that it’s up to their staff to deal with their own issues. But as a manager or supervisor there’s a duty to identify problems before they escalate, to offer advice and support and to proactively manage an individual where there’s under performance.

‘If I ignore the problem it’ll all go away’
An inexperienced or untrained manager might take the view that in order to avoid conflict it’s best to ignore it and hope the problem goes away. This sounds a little silly but is consistently present in my experience of business. In this instance John did not seek to address the issues until it is was too late. John appreciated that there was a problem with David’s work but did not take steps to deal with it.

‘What an idiot – I’m going to tell him what for’
In my experience people are either too weak or too aggressive when they deal with conflict. We live in a society which still favours aggression and we have a legal system which is adversarial in nature. In this case when John did start to take action, when he wanted to take legitimate steps to protect the reputation of the firm due to the poor performance of David, he started using unpleasant language and making it a highly personal issue. As a consequence the conflict was inflamed.

‘I’m sure he does this just to annoy me’
You may be annoyed that something hasn’t been done or has been done incorrectly – but put annoyance to one side and think logically. In this case at all stages when John dealt with the problem he focused on what wound him up and lost any sense of perspective. He made it personal, and it wasn’t personal, it was business.

‘That’s it, I’m putting it in the hands of our solicitors, they can get rid of him’
Of course it can be necessary to use lawyers at some point. In this case they were called in when John decided he couldn’t resolve the problems with David’s performance and he had to be dismissed.

Notice John called in the lawyers before trying to talk things through with David. Did this improve the situation? Of course not. Instead an already tense situation was made worse.

Where it ended up
The consequence in this case was that David was dismissed. But that’s not the end of the story. David launched a claim for unfair dismissal, both parties ended up spending £10,000 each in legal fees. David’s once promising career was brought to a halt and the firm’s reputation was damaged. I’m sure you would agree there were no winners, only losers in this scenario – due largely to the incompetent handling of the conflict by the manager in question.

Getting it right
All this could have been avoided by following this, slightly more sensible, approach to performance management and conflict resolution:

•Make time and try to nip problems in the bud

•Actively manage the situation – don’t let things get out of control

•Stay calm, don’t make it personal and remain professional in your approach at all times

•Talk through the problem with all parties, fully understand the issues before calling in the lawyers – use a mediator if you don’t feel this is possible without independent help.

Monday January 19, 2015 at 3:54pm
Pension Reforms - This is an article written by Andrew McErlean of Cartlidge Morland. (Andrew's contact details are below)

Recent changes to personal pensions and self invested personal pensions (SIPPs) on retirement have received signifcant coverage in the media. Beyond the headline-grabbing talk of buying a Lamborghini, what pension flexibility have the changes introduced?

The new flexibility comes in two phases:

Phase 1, an increase in flexibilirty of existing options

Phase 2, a new pension option

Phase One - Changes to The Existing Pension Option

For the current tax year under capped drawdown, the maximum income you can take from a pensions drawdown arrangement is 150% of HMRC’s income limit – a limit dependent on your age. This is a 50% increase on the limit in the 2013/14 tax year.

Flexible drawdown, which allows an income of any amount to be drawn from a personal pension, is now available to anyone with income of at least £12,000 pa - reduced from £20,000 pa. As before, this secure income must come from speci?c sources – such as state pensions, annuities and ?nal salary arrangements.

Phase Two – Introduction of a New Option

The changes from 6 April 2015 effectively remove income limits on everyone.

Provided personal pension/SIPP investors have reached 55, they can draw whatever income they like. When tax-free cash is drawn, the applicable income pot can either be taken too or can remain in drawdown.
There are a number of points to beware of:

• Income Tax - Apart from the tax-free cash, the income from the pensions plan is taxed at your highest marginal rate of income tax. If you draw more than the tax-free cash out of the pension at any one time, it is likely that you will pay a higher rate of ‘Emergency Tax’ on the taxable amount. Consequently an incorrect level of tax could be deducted and willthen have to be adjusted up or down by HMRC through self-assessment.

• Reduced Annual Allowance - annual pensions contribution limit on which you receive tax relief will be reduced from the current £40,000 level to a maximum of £10,000 if i) you draw an income directly from your pension through the new rules, or ii) convert existing drawdown arrangements to the new drawdown pension to access unlimited income.

• Fines for Orphan Pension Pots - Pension savers will be liable for a £300 penalty if they take cash from their pot and then fail to track down every single one of their other ‘orphan’ pension pots within 31 days. They must also send details to their scheme administrators/insurers as ?nes accrue at £60 a day after this.

• Pensions on Divorce- The unlimited pension access is not available where i) a pension sum is assigned after divorce and ii) where tax-free cash has already been taken from this.

This is a very brief overview of the planned changes to accessing funds accumulated in a pensions policy. Further details will be forthcoming over the next few months. Please contact your consultant if you would like to discuss how they could impact you.

Andrew McErlean is a consultant at Cartlidge Morland and he contacted by email - Andrew.McErlean@CartlidgeMorland.co.uk. Cartlidge Morland is authorised and regulated by the Financial Conduct Authority.

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