New powers for courts to penalise non-engagement in ADR in family trust and inheritance cases, The case for alternative dispute resolution
Lisa Rodger
Mediation Manager at TBG Mediation Let me help you find an accredited civil mediator anywhere in England and Wales at a fixed fee price
THE HOT STORY
New powers for courts to penalise non-engagement in ADR in family trust and inheritance cases
Courts in England and Wales will soon have the authority to impose legal costs on parties who fail to participate in non-court dispute resolution processes in cases under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) and the Inheritance (Provision for Family and Dependants) Act 1975. The new power, which takes effect on 1st October 2024, aligns with existing financial remedy proceedings, where similar sanctions have been in place since 29 April 2024, under Family Procedure Rule 28.3(7). Family courts won't have the power to directly order ADR, but they can now issue cost penalties for parties who unreasonably refuse to engage, in effect bringing TOLATA and 1975 Act cases under the broader framework encouraging ADR participation.
MEDIATION
The ultimate guide to winning disputes with your neighbours
Daily Mail
Writing for the Daily Mail, Dean Dunham says that the hottest topic in his mail bag, on his radio talk show and online is disputes with neighbours.?He details some examples of neighbourly?disputes, and how to handle them. Dunham concludes that with all neighbour?disputes?there is always the option to attempt mediation, "a step-by-step process in which an impartial?mediator?helps people in?dispute?settle their differences quickly and confidentially. It does not seek to prove right or wrong but helps those involved to identify what they want or perhaps need to change."
ALTERNATIVE DISPUTE RESOLUTION
The case for alternative dispute resolution
Writing for Insurance Post,?Adam Thorpe, associate director and head of litigation at solicitors Winn Group, looks at how alternative dispute resolution could reduce lengthy court waiting times and get compensation to claimants faster. He cites the recent Churchill vs Merthyr Tydfil County Borough Council case outcome, which recognised the court’s authority to mandate ADR in certain circumstances.
Navigating the maze of arbitrability
Law.com's ADR special section delves into key topics such as arbitrability disputes, effective mediation strategies, and a comprehensive review of arbitration agreements. It also offers three distinct perspectives on applying Alternative Dispute Resolution (ADR) within family law. The section aims to provide valuable insights and practical advice for legal professionals navigating these complex areas.
NEGOTIATION
Try forensic listening if you really want to understand people
Writing for Forbes, Rodger Dean Duncan talks to?advocates of “forensic listening,” including?former FBI hostage negotiator Chip Massey. Massey defines forensic listening as the art and science of analysing a conversation?after?it has occurred, because words and behaviours leave clues.? “There are four things to watch closely in any business setting that most people ignore,” Massey says. “Those things include heighted emotions, themes and word choice, body positioning and voice: pitch tone, and cadence.”
A negotiation workshop for women and non-binary people
Queena Wong, the founder of Curious Vines, a?UK-based supportive community of wine industry women, has launched a negotiation skills workshop designed for women and non-binary people.? Led by Wong, the workshop will take place on?October 9 over a half day, with the aim of supporting the career progression of participants via “non-wine skills.”
DISPUTE RESOLUTION
David Miliband faces ￡70,000 bill to repair his home
Daily Mail
Former Foreign Secretary David Miliband faces a ￡70,000 bill to repair his home after losing a dispute with neighbours over a tree in his garden. Miliband claimed the roots of the 26ft high Acer have damaged the foundations of his ￡3.5m home in Primrose Hill, leading to cracks in the walls and ceilings. He argued that removing the tree would cost only ￡3,273, compared to the ￡68,273 needed for underpinning. Camden Council rejected his application to fell the tree, citing its contribution to the conservation area and the objections from neighbours who value it as a wildlife haven. Miliband's planning agent warned that if the council continues to deny the removal, they will seek compensation for the additional costs incurred.
FAMILY DISPUTES
领英推荐
Family feuds over inheritances surge
Family disputes over inheritances are increasing, driven by rising asset prices, complex family structures, and higher dementia rates. In 2023, over 10,000 wills were contested, marking a decade high. Michael Henry of Nockolds, the?firm?that obtained the data, said high property prices were fuelling the surge in estate battles. "People are relying more heavily on inheritance to get on the property ladder or provide for them in retirement," he said, adding: "If someone is left out of a will, or stands to inherit less than they were expecting, this can trigger a claim."?Emily Deane, of the trade body the Society of Trust and Estate Practitioners, said: "The increasing complexity of families is a key factor, including the significant number of second marriages, step children and cohabiting couples," while?Alison Parry of?JMW noted: "Although a number do settle early on with minimal costs, if all sides are willing, it is rare to get even a simple claim to a trial for less than around ￡45,000 in costs."
Children left in limbo as family courts in crisis
The Times
Severe underfunding of family courts has left many children in legal limbo, with delays described as "unacceptable" by Sir Andrew McFarlane, the senior family court judge. Between January and March, nearly 4,000 public law cases were initiated, affecting over 6,500 children, yet many cases exceed the 26-week resolution target. Grant Cameron, chairman of the lawyers' group Resolution, says that "family courts are at breaking point," highlighting the increased demand and significant delays families face. James Roberts KC, chairman of the Family Law Bar Association, attributed these delays to chronic underfunding, which has made the family justice system a "soft target for cuts." The Ministry of Justice acknowledged the strain on the system, stating that addressing the high caseload remains a priority.
New guide to prioritising children’s voices in family law
Tom Quail, head of family law at Wright, Johnston & Mackenzie, has published a book that provides advice for lawyers and the public about navigating the complexities of child welfare disputes amid recent changes in child welfare cases. The book,?A Practical Guide to Contact and Residence Disputes, addresses real-life challenges faced by families and their lawyers in Scotland and focuses on the updated legal landscape. It includes the significant changes introduced to the Sheriff Court Rules for Family Actions in September 2023.
WORKPLACE CONFLICTS
London nurses to protest outside Downing Street as strike action continues
London Evening Standard
Nurses at Guy's and St Thomas' NHS Trust are staging protests this week in response to extended shift times, which they describe as “unsustainable.” Approximately 100 nurses are participating in the industrial action, claiming that the changes have led to “burnout and exhaustion.” Unite general secretary Sharon Graham said: “Working devoted staff into the ground will make things worse, as dedicated NHS workers leave for the sake of their own health.” The protests will occur at various London locations, including Downing Street and the Department of Health and Social Care. The Trust has proposed staggered shifts, but some staff will still be rostered for standby shifts from 8pm to 9pm, receiving additional payment for this. The Trust argues that these changes are necessary to meet patient demands.
Next equal pay claimant on fight for recognition
The Guardian
Helen Scarsbrook, a sales consultant at Next, talks to the Guardian about the ongoing issue of unequal pay between female shop floor staff and their male warehouse counterparts. Following last week's landmark ruling by an employment tribunal, Scarsbrook says: "We always knew we weren't well paid . . . but it made me furious when I understood that the warehouse workers were paid more." The tribunal's decision could influence similar claims from female staff at major supermarkets including?Asda and Tesco. Despite Next's intention to appeal, the ruling is seen as a significant step towards addressing gender pay disparities in retail. Scarsbrook, who has worked at Next for nearly 22 years, hopes the judgment will inspire other women to come forward and seek respect and fair compensation for their work.
INTERNATIONAL DISPUTES
US loses patience with Netanyahu and says 'it is time to finalise a deal' with Hamas
Daily Mail
The United States has urged for a swift conclusion to the ongoing conflict between Israel and Hamas. State Department spokesman Matthew Miller has said "it is time to finalise a deal." His comments come after Israeli Prime Minister Benjamin Netanyahu resisted pressure to make concessions during indirect negotiations, despite the recovery of six hostages by Israeli forces. John Kirby, national security communications advisor, emphasised that "every nation can speak for themselves" regarding support for Israel. Meanwhile, the humanitarian situation in Gaza remains dire, with over 40,819 fatalities reported since the conflict escalated on October 7. The UN has called for an "independent, impartial and transparent investigation" into the deaths of the recovered hostages. As the situation intensifies, the US, Egypt, and Qatar are collaborating to push for a final agreement.
Communications Workers of America withdraws from mediation with AT&T
The Communications Workers of America (CWA) has informed AT&T and the Federal Mediation and Conciliation Service that it would no longer be a part of mediation with the telecommunications company. The union argues that AT&T has used the process to stall negotiations. "The company was using the mediation process as another delaying tactic," claimed CWA District 3 Vice President Richard Honeycutt.?More than 17,000 workers who are represented by the union, including technicians, customer service representatives, and others who install, maintain, and support AT&T's residential and business wireline telecommunications network, remain on strike which began last month.
US starts dispute process on Canada's digital services tax
The US has taken a first step toward a potential challenge of Canada's?digital services tax?on large foreign technology companies under the North American trade deal.?The tax is a 3% levy on the digital services revenue a company makes from Canadian users above C$20m ($14.8m) in a calendar year. It would apply only to companies with annual worldwide revenue of more than about C$1.1bn. U.S. Trade Representative Katherine Tai has requested dispute settlement consultations with Canada under the United States-Mexico-Canada Agreement (USMCA). If the countries can't resolve the matter through talks within 75 days, the US may request a dispute settlement panel under the USMCA.
Journey members don't stop believing in resolution
Journey members Neal Schon and Jonathan Cain have settled their longstanding legal dispute. They have been at loggerheads over their joint business Freedom 2020, which was set up to deal with tour-related finances, and in which each own a 50% stake. Cain said in a petition that he and Schon “fundamentally disagree” on the management and operation of the company, and called on the court to appoint a custodian to act as an independent, deadlock-breaking director. The Delaware Chancery Court has now appointed Vice Chancellor Joseph Slights as a third independent director to break any ties. “Mr Schon is prohibited from unilaterally acting on behalf of the Company and all future deadlock between Mr Cain and Mr Schon will be broken by the vote of the Custodian,” Cain's legal team said, adding “Mr Cain is elated with the outcome and looks forward to moving beyond this matter so that Journey can continue the band's 50th Anniversary Freedom Tour.”
Barrister, Private FDR Evaluator, Mediator Collaborative Lawyer and Family Law Arbitrator at Westgate Chambers
6 个月Interesting article but can we please stop using the term ADR? Very old fashioned and using non court ways of resolving our disputes is NOT alternative anymore - it is, and should be, mainstream especially in family law. What separated familes often fail to realise is that the main protagonists in the legal dispute will always be parents to their children and thus will still be a family, albeit differently configured going forward. Non court dispute resolution has much to offer and should be a first resort.