Inflation and maintenance payments: How to revisit payments

In the first part of this blog, we looked at some of the key points to consider when you start to think about reviewing maintenance. This blog looks at the processes you can use to bring matters to a conclusion.

The two ends of the continuum are:

• Stasis: putting up with what you have got; and
• Court: a year’s grind through the legal system, before a judge hands down their decision at the end of a process that might have cost £40,000 to £100,000 on each side.

In between are some more expert (on the one hand) and more cost-proportionate (on the other) options:

A. DIY: 

• You could talk this through between yourselves.  You might find a solution emerging that you can both live with.
• Many people will find this hard: each is likely to feel their own side (paying or coping on what is being paid) most keenly and finding a new number to agree for the future will be challenging work, particularly if communication is hard.  Where you are communicating well, for example around the children, there is a chance of upsetting that equilibrium.  You will step into this zone with care; though:
• If you can get to an answer and do it well, then obviously this is a highly cost-effective way forward and one that will further build your confidence in managing problems in the future.

B. One professional 

• Many people who fall short of that ideal just want guidance on the one right number.  The trouble of course is that the system in England and Wales has no formula overlay to generate the one right outcome.
• What it does have is principles … and experienced professionals should be able to give guidance on the bracket of likely outcomes.  Of course, unusual circumstances are likely to mean a wider “bell” and make it harder to give guidance on the right outcome.  However, even that guidance can have its uses: knowing that the outcome is so unpredictable and recognising the risk of a high-cost process, the upsides of doing a deal should be a clarion call to each to agree a way forward: that is a “win” of sorts and perhaps the best available.
• Those pursuing this route are likely to reach out to an appropriate mediator … it is possible that they may make use of some of the emerging “one lawyer-one couple” services.

C. Lawyer to lawyer discussion 

• Many feel that what they most need is someone on their side, giving them strategic input on how to manage the situation for the best.  This will arise when stakes are high, trust is low or there is a sense of a power imbalance, particularly where there has been an abusive relationship.  Such people will make an appointment with their own lawyer for guidance on what they should do before they break cover or where they have been approached by their ex and are trying to work out what step now to take for the best.
• The instructed lawyer may then lead you back to a DIY option or perhaps mediation but very often will reach out to your ex or their lawyer and start the conversation about amending the provision.  Having lawyers who know and trust each other and operate on the same wavelength will make it most likely that your agreement can be pulled together at an early stage and converted into a court order, varying the old provision by agreement.
• As an upgrade on this, dealing with matters within the collaborative system, makes it most likely that there will be early face to face dialogue and an immediate search for the fair outcome: everyone contracts out of resorting to the court – but you have the upside of someone looking after your interests, whilst also promoting your joint interests in finding an agreement away from court.

D. Three way discussions 

• Your lawyer’s job is to support you and pursue the best outcome for you.  You can imagine how two lawyers instructed by different parties but dealing with the same issue would see the merits very differently.  One (instructed by the paying party) might see the solution in the recipient building up their income and reducing their spending … alongside moving out of the enormous home that they are rattling around in.  Meanwhile the other sees in the case data only limitless capacity to provide and that it is a substantial increase in the payments that solves this problem.
• Where this phenomenon generates a gulf between the two sides, then what is likely to be needed is a third lawyer to hear the views and help everyone forward to the place where a solution might lie.  This could take the following forms:
  • Hybrid mediation: a mediator joins the discussion.  They have lead status in a process which they run, with the advising lawyers in a supporting role.  Often the mediator will shuttle between parties in their separate rooms.
  • The joint conference: (our favourite for many situations) an all-in-the-room-together discussion, without leaving, without grandstanding and with an authentic commitment to listen and be guided (a commitment from everyone!).  Because it can be done so early in the process, it can be done
    • when costs are low;
    • before there has been the whole exhausting disclosure to the last detail;
    • before positions have hardened and when, all being well:
    • there are reserves of patience for everyone to get across to the deal on the other side.
  • The private FDR: a lawyer will be appointed as the “tribunal”.  The parties will often each have their lawyers – and barristers too – and the process will last for at least half a day and perhaps longer as
    • the barristers present their clients’ cases;
    • the tribunal gives their view on what they think a judge would award; and
    • the barristers then seek to negotiate to a conclusion, shuttling proposals to and fro.

This stage tends to be late on.  It means that the costs will be higher and all too often, even when a deal is reached, parties agree with a bad taste in their mouths:

• Yes, it was better than carrying on to court with all the far higher expense that this would have involved;
• but the deal feels as if it was a bit of a shotgun deal: because there was no option to carry on.  It was a way of minimising further losses rather than the securing of a deal that gave satisfaction on each side.

E. Alternative adjudication:  Here parties will appoint an arbitrator

• Quicker than court because it moves as quickly as the parties and their lawyers can manage.
• Cheaper because it cuts out any bits of the process that aren’t really needed … for example why have a hearing when everything that the adjudicator needs can be written down and posted in … that may mean that the solicitors are confident to run the cases and without barristers, costs will reduce again.
• Higher quality: our judiciary are amazing but they are managing long queues at court; the arbitrator is appointed to run just your case and will give it the time and attention you need.  Your lawyers will guide you towards someone who truly offers a good and expert service.

FLiP has developed a hybrid model that

• Provides support to parties to help them each do their best work;
• Promotes the early mediated solution;
• Brings in legal guidance where parties still find themselves apart; and
• Provides arbitration to deliver closure safely away from the court …

But of this more later.

In the meantime, key guidance might be:

• Get the right lawyer: if you are seeking your lawyer purely on the basis of their reputation for hard fought litigation then … well hard fought litigation is what you are reasonably likely to end up with.  Tracking down a multi-disciplinary practice with a reputation for out of court solutions is more likely to keep you safely away from the cost, delay, effort, intrusion and uncertainty of court.
• Ensure that your case is managed constructively and respectfully: loud and litigious is merely likely to generate the same back and it is likely to prove to be just noise – expensive noise.
• Get the facts out early – the sooner this is done the sooner everyone can take advice and that means that you are looking at solutions when costs are still low.
• And keep asking that question “what am I reasonably sure to get” and if you don’t get an answer then ask “what needs to happen for me to know?”   This sort of takes us back to the first, which is about finding the right lawyer, with experience, technical know-how and negotiation nouse to get you to a good resolution.

Lawyers at FLiP can offer:

• Mediation
• Lawyer led discussions
• Joint conferences
• Collaborative process
• Private FDRs; and
• Arbitration

Where we are appointed to act for you alone, we will start with discussing principles and the range of likely outcomes so that you can assess whether this is something on which you should even start … and subject to that whether DIY is a good option to carry matters forward.