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Mediation: A Real Alternative to Court?

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Nigel Martin trained as a Mediator at Harvard Law School in 2014 and has successfully mediated Disputes adopting the Model of Understanding.  This is the second in his series of Guest blogs which looks at alternatives to Court proceedings.

In his last blog,  Nigel looked at the processes of mediation; here he explores the benefits of mediation.

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When considering Mediation as an alternative to Court proceedings the key benefits to bear in mind are as follows:-

1. Mediation saves time.

Mediation can be arranged in a matter of days or weeks. A Court hearing requires proceedings to be drafted, issued, responded to, documents to be disclosed, Expert Opinions sought, Review Hearings, Direction Hearings and obtaining a date for a Final Hearing can take many months or longer in high conflict or complex cases.

2. Mediation is forward-looking and positive.

The Court Proceedings focus on past events, conceptualising those events in terms of legal Rights or Wrongs. The Court’s remedies are relatively limited and take little account of the parties’ present or future interests. Mediation focuses on the future and how to get there. Mediation can capture value which may not ever be considered by the Court.

3. Mediation is entirely voluntary.

A party can choose to remain or withdraw from mediation at any time. By contrast, a Party to formal Court Proceedings is compelled to engage in a competitive and oppositional battle or risk a very adverse finding being made against that party.

4. Mediation is empowering and the parties control the process.

The parties together, can dictate the timetable for mediation and the speed of progress. They craft and control the outcome. Mediation can therefore happen much more quickly than waiting for a Court date. The parties can together, chose the time, date and place of the mediation to accommodate their respective timetables and ensure privacy. The Parties have complete control over costs.

5. Mediation is private and confidential.

What is said or not said during the mediation process is completely private and confidential. Strict confidentiality is provided for in the legally binding and enforceable Agreement to Mediate.

6. Mediation can preserve relationships.

The Court process requires the parties and their respective lawyers to compete against each other and the process is largely oppositional. Most of the time, effort and costs are devoted to simply resisting the forensic “push and pull” of the Opponent. Over time, that competition, is highly corrosive of any pre-existing relationship whether it be Contractor and sub-contractor, Manufacturer and Distributor, Wholesaler and Retailer, a professional or personal Partnership or a family relationship.

The process of mediation, facilitated by an expert neutral person, will not harm that underlying relationship and will in most cases preserve or enhance it. By contrast, Court Proceedings usually award one party a “Victory” and require the other party to suffer a “Defeat”. This dynamic alone is most unlikely to foster good relationships.  In Mediation, where the parties can model agreement and gain a better understanding of each other, their relationship can be enhanced even if the dispute cannot ultimately be resolved through mediation.

More information can be found on mediation, arbitration and litigation at www.nigelmartin.co.uk.

Brexit: The current law on EEA nationals living and working in NI

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brexit

In the wake of the Brexit referendum on 23rd June 2016, many European nationals living and working in Northern Ireland face considerable uncertainty in terms of their future here – Will they be allowed to remain in NI where many have made family lives and homes for themselves?  Or will they have to leave and settle in either their European national state of origin or an alternative European state?

Unfortunately as it presently stands, no definitive answer has been given by the government on the effect that Brexit will have on current European nationals living and working here in NI.  
In light of this, we are here to provide you with some further information on the current law governing the right of European nationals to work and reside in NI.  
What is the European Union (EU?)

The European Union (EU) is an economic and political union of countries.  The countries that are part of the EU are:

Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, UK.

What is the European Economic Area (EEA)?

The European Economic Area (EEA) is the area in which agreement provides for the free movement of persons, goods, services and capital within the European Single Market.

The European Economic Area includes all EU countries and also Iceland, Liechtenstein and Norway.  Switzerland is neither an EU nor EEA member but is part of the single market – this means that Swiss nationals have the same rights to live and work in NI as other EEA nationals.

Countries that are part of the EEA are known as Member States.  Nationals of these countries are known as EEA nationals.

 Are EEA nationals permitted to live and work in the UK & Northern Ireland?

European law bestows on all EEA nationals and their family members the right to move freely and reside within the EU.  Therefore, an EEA national can live and reside in another Member State, including the UK & Northern Ireland.  Similarly, a citizen from the UK or Northern Ireland can choose to live and work in any other EU Member State.

The law governing this area in the UK is the Immigration (EEA) Regulations 2006 – this piece of legislation applies and interprets the UK’s obligations under the Free Movement of Persons Directive 2004/38/EC into domestic law.

Are there any criteria that need to be satisfied?

In order to enter the UK, an EEA national must firstly produce a valid national identity card or passport issued by an EEA Member State.  Once admitted to the UK, an EEA national may live here for up to three months.

If an EEA national wishes to reside in the UK for more than three months, they will have to show that they are what is known as a ‘qualified person’.

What is a qualified person?

A qualified person is defined as an EEA national who is in the UK and exercising free movement rights.  A person will be deemed to be exercising their rights of free movement if they can satisfy that they are one of the following:-

  • a worker;
  • a job seeker;
  • a person who is permanently incapable of work owing to industrial disease or injury;
  • a person who is permanently incapable of work for reasons other than industrial disease or injury and has been resident in the UK for at least two years prior to stopping work;
  • a self employed person;
  • a self sufficient person;
  • certain retired persons;
  • some persons who are temporarily unemployed;
  • students;
What paperwork do I need to have?

Technically, no legal documentation (other than an identity card/passport) is required by an EEA national to prove that they are legally entitled to reside in another EEA Member State however many will apply for a document known as a Registration Certificate to have as confirmation of their  right of residence. Applications for a Registration Certificate are made via the UK Home Office.

Can an EEA national obtain permanent residence in the UK/NI?

An EEA national can apply for  a document certifying permanent residence in the UK/NI once they have lived here for a period of 5 years so long as throughout that time they have retained their status as a qualified person throughout that time.  This is known as a Permanent Residence Card. These applications are also made via the Home Office.

Can an EEA national obtain British citizenship?

Once an individual holds a Permanent Residence Card in the UK/NI for 12 months,  they are entitled to apply for naturalisation as a British Citizen subject to other conditions contained in the British Nationality Act 1981

Following Brexit, it will no doubt take some time before the government and individuals know specifically where we all stand in relation to the rest of the EU.  In the meantime, the above position continues to apply for those EU nationals living and working in the UK.
If you require any further information on this area of Immigration Law, please contact us here or alternatively contact mgavin@fhanna.co.uk

 

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Property Surveys: To Invest or Not to Invest?

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buildingwork.jpgBuying a new home can be both an exciting and nerve-wracking experience – exciting because it marks a new start in a new home, and nerve-wracking because buying a house is a big expense and commitment. 
It is important that you do your research before money changes hands to know as much as you can about the property you are buying.
Once the offer you place on your new property has been accepted, it is your solicitor’s job to ensure that the legal title of the property is in order.   Your solicitor will therefore carry out all of the necessary checks on the title to the property.

The one thing your solicitor is unable do for you is to inspect the property for physical defects.  Whilst you will of course have viewed the property a number of times yourself, unless you are a qualified surveyor there can be no guarantee that the property doesn’t have underlying physical defects that you are not aware of. 

In order to alleviate any fears in this regard, it is a sensible idea to obtain a survey of the property at an early stage in the conveyance process.

There are three main types of survey:

  1. Valuation Survey

If you are obtaining a mortgage to buy your property, a valuation survey will normally be carried out by the mortgage lender and this survey is solely for their benefit.  Valuation surveys are very basic and restrict themselves to comments of a very general nature only.

  1. Home Buyers Report (‘RICS Survey’)

This survey is carried out by a member of the Royal Institute of Chartered Surveyors and is a much more in-depth survey of your property. The property will be extensively assessed by a surveyor and any defects noted. An indication of the severity of the defect will be provided along with comments about the general upkeep and maintenance of the property.

  1. Structural Report

Occasionally, a defect will be found which is so concerning that you are advised to obtain a structural survey. This will generally look at one specific area of concern, such as problems with suspected cavity wall tie failure, or cracking which may be caused by a poorly constructed extension. Structural reports are also recommended should you be planning extensive renovation works upon buying the property.

All of the survey reports detailed can recommend the need for further specialist investigations, such as a damp proofing or timber report.  If you are buying with a mortgage, the mortgage company may insist that these reports are obtained before they release any monies to you to buy the property.  

The benefits of a thorough survey are hard to overstate as they frequently show hidden problems which may not have been apparent when you first viewed the property. It is therefore something that should be carefully considered by anyone thinking of buying a property.

RFlinnRuth Flinn is a Solicitor in the Property Law Department of Francis Hanna & Co Solicitors. She is experienced in all areas of residential conveyancing. If you require any further information on conveyancing matters, please CONTACT US HERE or contact Ruth on rflinn@fhanna.co.uk

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Living Wills & Advance Directives

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willsThis year from 19th – 23rd June 2016, Belfast hosted the British Medical Association (BMA) Annual Conference.   One controversial topic debated during the Conference was the BMA’s position on assisted suicide. The issue centered on whether the BMA should adopt a stance of being “neutral” rather than “opposed” to assisting a person ending their own life.
The past few years has seen a lot more discussion on this topic, which is not surprising given that most of us will live a lot longer than our grandparents, and as a society we are much more alert and sensitive to individual rights and personal choice.

We are all familiar with heartrending stories of gravely ill people who want to be able to choose their time of going if their suffering becomes intolerable to them.  Such stories can create a moral divide – those who believe in the sanctity of life may find the notion of ending their own or someone else’s life deeply offensive.  However, for others, the idea of being compelled to endure extreme pain or an existence with virtually no quality of life can seem intolerable.

What is the current law in NI on assisted suicide?

The law here in NI is that whilst it is not illegal to commit suicide, it is illegal to assist a person in committing suicide.

If assisted suicide were to become lawful, the fear amongst many is that some vulnerably ill people could feel under pressure to end their lives prematurely.  There is no doubt that if our  legal system were to contemplate the legality of assisted suicide, strong protections would have to be incorporated into the law to ensure that those who are physically or mentally vulnerable, or both, would be identified and afforded very considerable protection against any abuse.

Whilst assisted suicide is not legal in NI, there are ways and means by which a person can indicate how they would like to be looked after and cared for should they ever lose the ability to communicate.

What is a Living Will/Advance Directive?

A Living Will, or Advance Directive as it is also known, is a document that an adult with mental capacity can execute.  The purpose of a Living Will is to set the type of medical treatment you would not want should you become gravely ill and unable to make or communicate your decisions at the time.

A Living Will cannot insist upon medical treatment being given but it can specify if and when medical treatment should be withheld to allow death to occur.  This can include expressing a wish not to be resuscitated in certain specified and limited circumstances.

What are the benefits of making a Living Will?

There are a number of benefits to making a Living Will:

  • It can help you feel more in control of your circumstances and future care.
  • It can help you avoid painful or difficult treatments that may not always be helpful anyway.
  • It means your family will know what you want and can respect your wishes.
  • It can help avoid disagreements about your care and treatment within your family or health and social care team.

A Living Will should not be entered into lightly and should be discussed with both a medical practitioner and experienced lawyer to be fully aware of the implications, and also the practicalities of where this document may be held to ensure that it is available to medical practitioners should circumstances set out in the Living Will come to pass.

Whether there is a change in the law on this issue in the future or not, there can be no doubt that it is a worthwhile exercise to consider what your future wishes may be should you become ill.   A lawyer experienced in this field can offer specialist advice and assistance in this area should you require it.

LJohnstonThis blog post was provided to us by Linda Johnston, Partner in FRANCIS HANNA & COMPANY SOLICITORS.  Linda specialises in the law surrounding ELDER CLIENT CARE, FUTURE PLANNING and LEARNING DISABILITY as well as being an accredited member of SOLICITORS FOR THE ELDERLY. For further advice or assistance on LIVING WILLS, please CONTACT US HERE or contact Linda on lj@fhanna.co.uk

Our Guide to Planning Permission and Building Control

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planningpermission.jpeg

So,  that dream home you bought years ago no longer feels like much of a dream – in fact, it may be turning into more of a logistical nightmare as your family grows and the house seems to shrink in size!

While many people in a position like this may sell up and ship out, some people may not want to leave their home and area and instead may decide to extensively renovate or extend their home.

Renovation works can be a major undertaking and quite daunting when it comes to the associated paperwork.   Frequently, this paperwork can be overlooked at the time the renovation work is being done  and this can cause issues should you eventually decide to sell your property further down the line.

Here’s our helpful guide to the approvals you may need when doing work to your home.

What is the difference between Planning Permission and Building Control?

For many types of building work, both Planning Permission and Building Control will be required but separate approvals  will need to be sought.  So what is the difference?

Building Control is primarily concerned that the building is constructed and designed in such a way to ensure the health and safety of people who us or are about those buildings.  Building Control deals with areas such as the structure of the building, fire and electrical safety, ventilation, hygiene and drainage as well as access and facilities for those who are disabled.

On the other hand, Planning Permission is all about the way our cities and countryside develops.  Planning looks at how land is used, the appearance of buildings, landscaping considerations, and the impact that the works may have on the environment around them.

For other types of work, such as internal alterations, Building Control approval will probably be needed but planning may not be.   You should always check with your both the Planning Office and Council to see what approvals if any you will need before starting any works.

What approvals will I need when renovating my house?

Depending on the type of alteration you are planning to do, you may require Planning Permission.   Planning Permission can be quite technical with many exemptions and your architect will be able to advise you on what is required.  Once Planning Permission is obtained, you should read it carefully and make sure you comply with all the terms. Often, Planning Permission will be dependent on certain criteria being fulfilled before work can start and the permission will have an expiry date.  Your local Council may also have to approve the works – this is  known as Building Control Approval of Plans.

Once works are underway, your local Council may wish to inspect them throughout construction, and once finished, they will issue a Building Control Completion Certificate to show the works are of a minimum required standard.

I didn’t realise I needed Building Control approval – what do I do?

Often, homeowners may not be aware that a smaller project of work that they are undertaking may require Building Control – for example, a ‘like for like’ boiler replacement, conversion to gas heating or the installation of cavity wall insulation.  This can often result in the work being carried out without the necessary Building Control approvals being in place beforehand.  Should the necessary approval not be obtained at the time the work is being carried out, this can be obtained retrospectively and the approval is then known as a Regularisation Certificate. If remedial works are required to bring the work up to the minimum standard necessary, the Council will not issue the Certificate until these works are done.

What would happen if I didn’t get Planning Permission or Building Control approval?

Without the correct Planning Permission and Building Control being in place, you may encounter difficulties selling your home.  If the purchaser of your home is buying it with the assistance of a mortgage, then their mortgage company will require proof that the correct planning permission and building control consents are in place.   It is worth obtaining all of the proper consents at the time the works are carried out and keeping all of documentation safely until you sell.

RFlinnRuth Flinn is a Solicitor in the Property Law Department of Francis Hanna & Co Solicitors. She is experienced in all areas of residential conveyancing. If you require any further information on planning permission or building control issues,  please feel free to CONTACT US HERE or contact Ruth on rflinn@fhanna.co.uk