How Does Remote Family Mediation work?

Prior to the lockdown, only a small proportion of family mediators offered family mediation via Zoom or other video conferencing platforms. As a result of the lockdown many more family mediators, including our Head of Family Law, Joanna Toloczko are now offering the service, given that many couples wish to progress the arrangements for their separation and divorce but face to face meetings are not possible. But how does remote family mediation work?

 

Joanna’s favoured platform is Zoom. In order to take part in a mediation conducted via Zoom, all a client has to do is download the Zoom app on their device. Joanna will schedule the meeting and send the client a link. The client then clicks on the link at the beginning of the meeting and it is as simple as that.

 

Mediation Information and Assessment Meetings are conducted individually and the only form required is the Family Mediation Preliminary Information form. Joanna will arrange for you to complete and submit the form prior to the MIAM.

 

As far as the joint sessions are concerned, if it is a financial mediation, there can often be a large number of documents to be shared. Joanna will manage this by sharing her screen with the clients so that Joanna and the clients all see the same document at the same time, whilst remaining “present” in the meeting. Zoom has a whiteboard function which can be used in place of the flipchart which would be used in a face to face mediation.

 

At the beginning of joint mediation sessions, Joanna will activate the waiting room function so that both clients enter the meeting at the same time and there cannot be any perception that either of them has been having a cosy chat with Joanna prior to the meeting.

 

Joanna will ask each party to confirm that they have no one else in the room with them; they cannot be overheard (particularly by children) and they are not recording the session.

 

Zoom also has a mute function which Joanna is able to use should one party become abusive or aggressive. There is also a breakout room function in case Joanna needs to speak to the clients separately.

 

Joanna has found that the remote sessions work just as effectively as the face to face sessions. Indeed, there are some advantages to the remote sessions as follows:-

 

  • No-one has to travel which eradicates disagreement regarding the venue for the mediation and makes it easier to arrange appointments which are convenient for all three participants.
  • The parties are not required to meet face to face so a layer of emotion is removed from the dynamics.
  • People tend to be more respectful of taking it in turns to speak rather than speaking over each other.

 

If you would like further information regarding remote family mediation please contact Joanna on her direct line 0203 861 5155 or at jtoloczko@meaby.co.uk.

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Why do we have to see clients alone? By Charlotte Brunning

Coming to see a solicitor to be a daunting experience for many and so clients often like to bring with them friends or family members for support. In some areas of law this does not pose a problem.

When it comes to Wills and Lasting Powers of Attorney the situation is different. For solicitors who deal with Wills and Lasting Powers of Attorney (LPAs), it is vital that when taking instructions from the client, on what they would like their Will or LPA to contain, that the client is not being put under any pressure from anyone else. This is sometimes known as undue influence and it can be seen as those around the Will or LPA maker using influence or pressure on them to create their Wills or LPAs in a certain way.

When taking instructions for a Will or LPA we will see the client who is making either of those documents on their own without their friends or family present. This ensures that the solicitor is able to speak openly with their client and the client is free to raise any concerns they may have which they may not have felt they were able to speak about in front of family members or friends. By seeing clients without others present, we are seeking to protect the interests of our clients and ensure that their wishes and instructions are their own.

Undue influence can come in many forms:

  • A person can overpower the judgment of another, meaning they control what the other person thinks or does.
  • A person can persuade another to come around to their way of thinking.
  • A person can routinely make decisions on behalf of another rather than them making them for themselves. This could be seen by the other person answering questions for them instead of letting them answer themselves.
  • A person may be imposing their opinions or beliefs on another without realising they are doing so.

How this can affect Wills and LPAs? Due to undue influence the client creating the Will may feel they have to leave their estate in a particular way, for example:

June has two children Katie and Stephanie. June brings her daughter Katie to her Will appointment. Katie comments numerous times during the meeting that she is struggling financially.

June tells the solicitor that she wishes to divide her estate 70% to Katie to 30% to Stephanie because Katie needs it more.

There is no problem with June doing this by her Will, however, with Katie present in the appointment it is more difficult to ascertain whether this is how June truly wants to divide her estate or whether she feels she must because Katie is present at the appointment and has made it clear that she is in a financially worse position.

If Katie was not present at the appointment then the solicitor would be able to ask June why she is making the decision to split her estate unequally between her two daughters and whether this is what she wants to do. If the solicitor does not see June on her own and Stephanie challenges the Will then the solicitors will find it difficult to confirm that June’s instructions were given without undue pressure.

Another example could be undue influence between married couples. One of the spouses could be more dominant within the marriage regarding making decisions and imposing their views upon their spouse. The more dominant spouse may wish to for them to both leave their estate by their Wills in a particular way and the other does not feel like they can contradict what their spouse says. We also advise seeing married couples separately to ensure that their wishes are their own. Although they are a married couple the solicitor must act in the best interests of each of them as individuals.

When it comes to LPAs the undue influence can come in the form of a friend or family member or another person pressuring the person making the LPA to appoint them as their attorney. For example:

Anthony has a son Luke who is pressuring him to make an LPA for Property and Finance so that Luke can access his bank accounts and have control over his property. Anthony does not want Luke to have sole control over his assets, but he does not feel he can contradict him. If Luke were to come to the appointment with Anthony, then Anthony may not be able to speak to the solicitor openly about his concerns with having just Luke in control of his finances. If the solicitor were to see Anthony alone, these concerns could be discussed, and Anthony may decide to appoint Luke alongside another attorney so that he is not acting alone.

Whether making a Will of LPA, we as solicitors must ensure that we are creating those documents based on the wishes of our client and not what other people think our client should do. This protects our clients both now and the future to prevent any challenges to the Will or LPA by way of undue influence.

If you wish to have a Will or LPA drafted, we are here to help. Please contact Esther Janalli-Brown on 01306 884432 or email ejbrown@meaby.co.uk for more information.

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SUPPORTING YOUR CLIENT THROUGH FAMILY MEDIATION

This article is aimed at solicitors who refer clients to our family mediator, Joanna Toloczko. It is intended to provide you with guidance on how to give your client the best possible support throughout the mediation process and maximise the prospects of a successful outcome.

 

The mediation referral

The referral process progresses most efficiently if you make the referral for your client. This can be done using Joanna’s referral form, which only takes a few minutes to complete. We need very little information to get matters under way. This is much better than just giving the client Joanna’s contact details or a link to our website. Clients often delay making contact and this leads to their case losing momentum.

 

Help with the Form E

If your client has already completed a Form E, please ensure that they have a copy of the Form E and the supporting documents to give to Joanna. This will save time when we are dealing with disclosure. If they haven’t completed a Form E yet, don’t worry, your client will be provided with guidance on the completion of the form as part of the mediation process.

 

Providing timely advice throughout the mediation

As the mediator is not able to provide advice to either party as this would prejudice her impartiality, there are likely to be several occasions when your client will need advice in support of the mediation process. The most significant of these is when the agreed schedule of assets, income and liabilities is ready. If your client has not previously had advice regarding the range of likely outcomes, now would be a very good time to provide them with that advice. Joanna will prepare the schedule in such a way that you can see at a glance what assets there are and the value of those assets. Comprehensive and constructive advice at this stage helps to manage expectations and leads to successful outcomes.

 

It is important to stress to your clients that there is not just one “right” outcome. It is very frustrating when a client comes to mediation clutching a calculation from their solicitor and will not budge from following that calculation to the exact pound.

 

Whenever a client feels that they would like to have an opportunity to consult their solicitor, Joanna will always give them time for this. Clients are always going to be more committed to proposals that were approached in a relaxed and comfortable way and supported by legal advice.

 

Have faith in the mediator

Help your client to select a mediator you know and trust and then have faith in the mediator. Clients may sometimes query, for example, why the other person was permitted to speak for longer than they were or why the mediation is progressing slowly (in their eyes). The mediator will usually have a very good reason for conducting the mediation session in the way they did. For example, the mediator may have detected that the discussions are only going to be fruitful if an angry or hurt client has an opportunity to vent first or the party who has not dealt with the couple’s finances is permitted an opportunity to “catch up” and understand the financial arrangements.

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What is a DBS check and what changes are being implemented?

A Disclosure and Barring Service (DBS) check is a mandatory process designed to find out whether an individual has a criminal record.  The aim of the system is to perform a balancing act between safeguarding the public and ensuring that the rehabilitation of offenders is not hindered.

These were originally known as Criminal Record Bureau (CBR) checks which were introduced by the Home Office in 2002.  These checks were aimed at protecting children and vulnerable adults from gaining close contact with people that could harm them.

The switch to what is now commonly known as DBS happened when the independent Safeguarding Authority merged with the Criminal Records Bureau in 2012.  This was in turn triggered by the response to the brutal murders of Holly Wells and Jessica Chapman at the hands of Ian Huntley which attracted a lot of media publicity at the time.

The system was amended in 2013 by the Police Act 1997 to allow for the filtering of single convictions after 11 years (or five years and six months if the person was a minor at the time of committing the offence) , and for non-violent, non-sexual offences that did not lead to a custodial or suspended sentence.

Today, DBS checks are an essential part of the screening process for many jobs, and while there are no official statistics available, it is thought that the system has prevented many people who are unsuitable for sensitive roles, from filling such positions – where they would otherwise have come into contact with children or vulnerable people.

There are obvious professions that require DBS checks for example teachers, doctors and nurses and care assistants.   There are also some bizarre professions that also require such checks including scrap metal dealers, chartered accountants, pest control officers (who may need to enter schools or nursing homes), traffic wardens, locksmiths and Bar Supervisors (who need a personal licence to see alcohol)

There are also different levels of DBS.

Basic Disclosure

This can be requested by an individual and anybody can obtain one.   Employers for example can request a basic disclosure if they want some background information on someone.  This can cover any recent or serious unspent convictions.  It can also be used for those who require personal licence applications, to obtain visas or if you are an infrequent volunteer at a school.

Standard Disclosure

A standard DBS check will reveal spent and unspent convictions, cautions, warnings or reprimands on an individual’s record.  In order to apply for a standard DBS check the applicant’s job title must be included in the Rehabilitation of Offenders Act 1974.     These job titles can for example include Accountants and Lawyers, Court and prison staff and Veterinary surgeons.

Enhanced DBS Checks

These more thorough checks are required for anyone who will be required to work with children or vulnerable adults.  It can also include other professions as set out in the Rehabilitation of Offenders Act 1974 and the Police Act 1997.

These enhanced checks can include a barred list which cross checks a list of people barred from working with children or vulnerable adults.

The costs associated with these checks are £26 for a standard check, and £44 for both and enhanced check and a barred list check.

Usually it is the employer who pays for these costs.  In addition you can pay an annual fee of £13 which will assist those who regularly switch jobs for example working as bank staff in a series of care homes.   This saves them time and money in having to pay for DBS checks every time they work for a new employer or are placed by an agency and can be used multiple times.

DBS certificates are issued to individual employees (even though the application may have been made by the employer) and who are able to challenge any incorrect information and spent convictions that may have been disclosed.

The time frame for completing DBS checks is generally between four and eight weeks.  It is also quite common however,  for some checks to take a lot longer to process especially if the person being checked has moved around a lot.   It is always better to use the services of a trusted DBS outfit who can hopefully speed up the process.

There are 5 stages to a DBS check set out as follow|:-

  1. The DBS application form is received by the DBS Authority
  2. There then follows a search of the Police National Computer
  3. Then there is a search of the DBS Children, DBS adults and List 99 in applicable applications
  4. A search is then conducted by the local police force
  5. The certificate is then printed and issued.

Imminent changes

The Disclosure and Barring Service has announced that the filtering rules for Standard and Enhanced checks are changing from 28th November 2020.  This follows a Supreme Court ruling earlier this year that decided that the existing DBS  rules were disproportionate and did not afford certain individuals the opportunity to rehabilitate. These changes are also designed to ensure that minor discretions do not continue to have a disproportionate effect on the working lives of those who are effected by them. (R (P& Others) v Secretary of State of the Home Department & Another)

The main changes that are being implemented are that the DBS will no longer disclose youth reprimands, youth warnings or youth cautions.  The multiple convictions rule will also be removed meaning that convictions will also no longer be automatically disclosed where an individual has more than one conviction.  This means that each conviction will be considered against the remaining rules individually as opposed to being automatically being disclosed on the certificate.

It is recommended that employers update their current recruitment practices and policies to reflect these changes. It is also recommended that the following statement should be set out in standard job application forms. ‘The amendments to the Rehabilitation of Offenders Act 1974(Exceptions) Order 1975 (2013 and 2020) provides that when applying for certain jobs and activities, certain convictions and cautions are considered ‘protected’.  This means that they do not need to be disclosed to employers, and if they are disclosed, employers cannot take them into account.’

If you have any concerns about the DBS system and the processes that are involved then contact Steven Eckett, Partner and Head of Employment at Meaby & Co LLP  020 7703 5034 or seckett@meaby.co.uk

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Should I give a reason for dismissal to an employee who has less than 2 years’ employment?

All employees have what are termed “Day 1 rights”, which are those which protect the employee and require no qualifying period of employment. Examples of these are, amongst others, the right not to be discriminated against or harassed. These serve to protect an employee, or prospective employee, from such unwanted conduct.

There are other rights an employee has, but which require that they have a continuous period of employment to qualify. The most common example is the right to make an Unfair Dismissal claim to the Employment Tribunal (“ET”), which relates to the manner and reason for dismissal. This currently requires that an employee has a minimum of 2 years’ employment with their employer to do so. The scope of this note relates to “ordinary” Unfair Dismissal claims, and does not address the issue of “automatic” Unfair Dismissal claims, for which statute has prescribed 7 circumstances in which such a claim may be made. Examples of automatic Unfair Dismissal are the right not to be dismissed for whistleblowing or for being pregnant or on maternity leave. These are also “Day 1 rights”.

Currently, because of the 2 year rule, the law effectively allows an employer to dismiss an employee unfairly if the employee does not have such a qualifying period, as the employee has no recourse to the ET to dispute the dismissal or seek remedy. Accordingly, an employer is protected from such claims, but practically, how should it handle a dismissal in circumstances in which the employee has no remedy?

Legally, an employer does not need to provide a reason for dismissal to an employee who does not have the 2 years’ employment unless they are pregnant or on statutory maternity or adoption leave. However, it would be expected that an employee would want to know the reason for their dismissal, and it may appear callous not to provide one. Practically, not providing one might encourage the dismissed employee to make a claim for which they do not require a qualifying period, such as discrimination, regardless of the merit of such a claim.  As costs are rarely awarded to either the winning or losing party in an ET, defending the claim will cost the employer time, uncertainty and money, all of which it would prefer to avoid.

Of course, the most appropriate solution is to provide the employee with the factual reason for dismissal, but there are circumstances in which an employer might be reluctant to do so.

If the employee is to be dismissed for redundancy, and the reason is genuine, it is generally relatively easy for an employer to show the employee that their role is no longer required, as it is usually a reflection of the financial or market position of the employer. Although any dismissal is rarely welcomed by an employee, at least a dismissal for this reason often comes without the stigma of “incompetence”.

But what should an employer do if it wishes to dismiss an employee with less than 2 years’ employment for “performance” reasons? It is entitled to do so. It is protected from any Unfair Dismissal claim in relation to that. It may be tempting for an employer to either provide no reason to the employee, or, if the personal relationship between the parties is warm, seek to categorise it as “redundancy” in an effort to avoid the feeling of hurt which a dismissal for “performance” often brings to the dismissed. By softening the blow, it is likely that this will reduce the possibility that another, Day 1 claim, is made against the employer.

A word of warning to employers. While the possibility of another, Day 1 claim being made by the dismissed employee is reduced in those circumstances, if one is subsequently made and it becomes clear in the ET hearing that the real reason for dismissal was not “redundancy”, it will show that the employer misrepresented the real reason for dismissal. It then becomes easier for an ET to accept the claimant’s argument that dismissal was for another reason – which may make the unmeritorious Day 1 claim more likely to succeed.

The answer to the question of “which reason should an employer give to a dismissed employee with less than 2 years’ service?” is not a “one size fits all”. An employer will take a view on the likelihood of a claim being made against it, and will also no doubt be informed by the relationship with the soon-to-be-dismissed employee. But it is worth bearing in mind the possibility that if it does try to “let the employee down gently”, it may have to defend a non-credible reason for dismissal in the ET, which increases the prospect of the Day 1 claim against it being successful.

Meaby & Co are lawyers experienced in all aspects of employment issues. Should you require advice on any aspect of employment law, including the above, please contact Chris Marshall on 0207 703 5034 or 07866 453679.

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Blogs

Stamp Duty Holiday – Move Quickly or Miss Out

The current stamp duty holiday during which no stamp duty is payable on the first £500,000 of the purchase price is due to end on 31st March 2021.

We have seen a number of news articles recently regarding the stamp duty holiday coming to an end and the risk that many prospective purchases, including those who have recently had offers accepted, may well fail to complete by 31st March and not benefit from the stamp duty holiday.

One such article which was featured on the Estate Agent Today website on 9th November quoted a national conveyancing firm as saying “anyone ringing us will be quoted with SDLT at the normal rate, so that will set it out from the start that the likelihood is that they won’t be completing by 31 March.” The article goes on to note that “Three weeks ago three conveyancing groups – The Society of Licensed Conveyancers, the Bold Legal Group, and The Conveyancing Association – warned in a statement: “The message that conveyancers would like clients and their estate agents to take on board is – understand that transactions are going to take longer than usual to progress and please be patient. Continually chasing your lawyer actually makes them less productive and indirectly is a further cause of delay in the process.”

There is no denying that the property market is busier than it has been for a very long time and this will inevitably lead to delays especially where a chain is involved. It seems to be taking longer than ever for mortgage offers to be issued and local authorities, many of whom are working under added strain due to the current pandemic, are experiencing significant backlogs in processing applications for searches and providing results.

Despite the pressures we are all under, we are not going to adopt a somewhat defeatist attitude and tell new clients that we best quote on the basis that they will miss out on the stamp duty holiday. We will continue to do all we can to progress matters as quickly as possible our end to minimise the impact of the current delays. There are, however, many factors which are entirely outside of our control and we would therefore recommend that anybody who wishes to purchase within the stamp duty holiday period finds a property and instructs a solicitor without delay.

If you have any queries regarding any aspect of residential conveyancing, please contact Stephen Carr on 01306 884432 or email scarr@meaby.co.uk

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WHAT DOES ‘DEPOSIT’ MEAN IN CONVEYANCING?

When buying a property and hearing the word ‘deposit’ you would immediately link it to the deposit your mortgage broker told you about (or to the one that the bank is asking for). However, ‘deposit’ does not always mean the sum of money you are providing on exchange of contracts.

The meaning of ‘deposit’ in conveyancing.

In conveyancing the word ‘deposit’ has two meanings.

The first one is obvious – you will tell the mortgage broker or the lender what amount of money you have available and it will be used to calculate the Loan to Value ratio (LTV). For example, usually the lender will ask for at least 10% deposit to be able to provide you with a mortgage. During the COVID-19 pandemic, lenders started to ask for bigger deposits and some lenders now ask you to provide 20% of the purchase price. There is also a possibility of providing 5% deposit when you are using a scheme such as Help to Buy.

On the other hand you might have inherited a sum of money and you want to use it towards the deposit. That would mean that you will have, for example, 60% deposit available and the lender will only provide you with the mortgage of 40% of the value of the property.

However, there is a second meaning of the word ‘deposit’ in conveyancing and it is also very important. When you receive a contract to sign you will see that the solicitor must write two amounts in the spaces provided– one for the purchase price and one for the deposit. In this contractual meaning, the deposit means the amount of money you might lose when the transaction will not complete due to the default of the buyer. This should not amount to more than 10% of the value of the property, however sellers do not usually agree for it to be less than 10%. In the case of Rock v Ready [2016] EWHC 3043 (Ch) the buyer lost £43,000 because they failed to complete.

Therefore it is important to distinguish between the deposit in the context of the lender and the contractual deposit. Even though you might want to put 60% deposit towards the purchase, the contractual deposit should not be more than 10% of the purchase price to secure the rest of your money.

To discuss any property related issues, please contact us on 0207 703 5034. You can also visit our Property Section to find out more.

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