Family proceedings on the move

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District Judge Stephen Alderson, in an astute pincer move with H H Judge Moir, is tasked to tidy up sloppy family proceedings. You now have the letter. “Stringent cost cutting”, “lean practices”, “reduced staffing levels”, “scrutiny of systems and working practices”,  FPR r1.4(2)e, email communication, 48 hr and 7 day rules for draft orders, lodging times for Financial Remedy proceedings. Well worth a read, not least to save you and your indemnity insurance big bills.

Yes, costs sanctions have been threatened before, but in a climate where the Bar elegantly serviced the bench, and where government cuts did not challenge the viability of the provision of services and judicial office. Now, the invisible fingers of the Ministry of Justice twist the screws and determine the judge’s costs orders.

The rules with regard to draft orders are probably the most challenging, taking into account that tomorrow we have another case and have forgotten what happened the day before. Leave your draft for over two days and face execution, it seems. These appear to be the time scales:

  • Except for final orders in Financial Remedies and interim DJ orders: submit your draft within 48 hrs of leaving court;
  • Interim DJ orders: don’t draft unless asked;
  • Final Financial Remedy orders: by 4.0pm on the 7th day after the hearing;
  • All orders in ‘Word’ by email to the court.

The family finance practitioners won’t be surprised by their new guidance; after all, they have been historically subjected to various degrees of rigour by the FPR. But now comes the lash – to be administered if you don’t comply. In a moment of characteristic generosity, DJ Stephen Alderson relents to allow filing of documents required for the FDR no later than 2 (instead of 7) days before the hearing, but observes that this concession will not extend to final hearings, where final positions must be filed no later than 14 and 7 days before the hearing. This blogger is convinced that some members of the bar will in time face costs that eclipse their circuit wine bills.

Whether as reminders or sea changes, the directions serve to show the future landscape – leaner, tighter, sharper, more competitive, more accountable. The role of barrister is no longer a ‘gentleman’s’ or ‘gentlewoman’s’ profession. We are in business, with cost saving ethos.

For 2012, don’t forget the new rule 206 of the Bar’s Code of Practice. Notify the BSB of your desire to continue to practice by 31 March 2012, and then annually; or take up gardening.


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Problem solving: family reporting, mediation and the courts

A number of family law practitioners have been asking me about the future of mediation, in particular, family mediation. If you are contemplating undertaking training, it is an important question, and worthy of a measured answer.

I came to family mediation by an unconvential route. Eleven years ago, training as a commercial mediator, I had little expectation then that family law would reveal such fertile acres for the family facilitator – it was inconceivable that mediation would be more than a sticking plaster for fractured families. Part III of the Family Law Act 1996 was still-born and quickly to be buried three years later. But Woolf’s Civil Procedure Rules in 1999 and later the current Family Procedure Rules were to change all that.

I envisage that within the next few years there will be a massive revolution in the way in which private law family disputes are managed.

Most district judges (rightly or not) no longer support the traditional ‘adversarial approach’ to resolving residence, contact and specific issue matters. Advocates schooled in examination, cross examination and re examination are dinosaurs in the district judge’s lounge. Less time is spent looking at what is ‘wrong’ and more time examining the ways to fix it.

Private family law is all to do with ‘problem solving’. Rather than seeing themselves simply as ‘reporters’, CAFCASS are placing considerable focus on both facilitation meetings (where the CAFCASS officer mediates the dispute) and family group conferencing (where the parties themselves forge an outcome).

The way forward will probably be a hybrid of both approaches. Many cases of family conflict do not lend themselves to round table discussions, and where there has been a history of domestic conflict or violence, family meetings are fraught with danger. But I come across few private law family cases where some element of facilitation would not have improved family functioning; and I encounter a surprising volume of instances where it can actually problem solve the main issues.

So, the courts want to know less about what is wrong – or indeed how to fix it; but expect the family court support practitioners to do the fixing. No, we do not need psychological profiling of parents – we need the application of simple remedial skills of the mediator to bring about changes in family functioning.

Where does that leave us as a profession? Well, certainly not litigating conflict in private law family disputes. First, the judge’s don’t want it; second, the government won’t pay for it; and third, the changes in expectation of both process and professional intervention will not support it. Yes, we are to be mediators, whether we like it or not. I for one, like it and see it as a treasured skill leading to a rich seam of professional satisfaction.


Understanding Clients’ Needs

Photo by Guy Erwood

Understanding the needs of solicitors and clients is something we all imagine we do well, but have never taken time out to check. In a highly competitive market place if we miss out on small points, we may lose out on big clients.

Getting it right is not an easy task, and varies from solicitor to solicitor. But can we sit down with each one of them and find out what they like and what they loathe?

Well, the simple answer is ‘we can’t’. They don’t have the time; and we don’t have the skills to enquire.

So this is where the Service Sheet – Understanding your Needs’ comes in.

Within it are some interesting ideas. For example:

  • partnership programmes
  • ‘off-fee’ discussions
  • linking or sharing technology
  • Shared use of library services
  • media advocacy
  • specialist up-date meetings

Understanding your Needs

Practitioner preferences

Do you currently access details of barrister profiles?

Have you identified your team of advisers?

On what basis is your selection of counsel made?

  • experience
  • skills
  • personality
  • availability
  • cost

Do your selected barristers understand and respond the needs of your organisation?

Would you seek a ‘partnering programme’: regular meetings with your chosen group of barristers?

Would you like to receive quarterly updates regarding the barristers in your field?

Communication

How do you prefer to communicate?

  • telephone
  • E Mail
  • linked data bases or shared technology?
  • practitioner to practitioner?

Would you benefit from direct mobile contact numbers for the barristers in your team?

Contact

How often would you seek meetings with counsel?

Do you wish to see counsel on a specific case basis only?

Do members of your current team offer ‘off the clock’ discussion time following meetings and phone calls?

Would you wish to avail yourself of an ‘off the fee’ discussion session with a barrister every quarter?

Would you benefit from being on the barrister’s mailing list?

Would you appreciate a free ‘newsletter’ containing legal updates from your team of barristers?

 Conferences

Where do you prefer to hold conferences?

Would you appreciate conferences at your offices as a priority?

Do any of your clients have a wish or need to conduct conferencing at their offices?

Would you benefit from video conferencing, and if so, do you require assistance in developing this service?

Technology

Do you currently communicate electronically?

Would you wish to develop the capacity for E practice?

Would you benefit from a technology link with your barristers?

Would you wish to share technology with your barristers?

Other resources

Your barristers have an extensive on-line law library. Would you benefit from associate membership for yourself or your colleagues?

 Media

Do you have or require media contact?

For this purpose, would you avail your organisation of a Media Advocacy Service?

Pro bono work

Do you provide this for your existing clients in any cases?

Would you appreciate pro bono advice from your barristers’ Pro Bono Unit, and if so, in what fields or for which clients?

Cultural

Do you encounter matters which involve cultural or religious issues, and if so which?

Would you benefit from free access to a network of barristers who have interest in and awareness of such issues?

Disability

Do you regularly/occasionally act for clients with disability?

Do you have easy access for the less able?

Would you wish for contact with your barristers’ Access Service for those with Disability?

Deadlines

Do you set target dates?

Would you benefit from the introduction of a formal target date expectation?

New developments in the law

What systems do you currently employ to keep up to date?

Would you benefit from the provision of a free twice-yearly update meeting with specialists who practice in your field?

Would you appreciate your name being added to a mailing list for new developments in the law?

Fees

On what basis would you prefer fees to be levied?

  • fixed fee
  • hourly rate
  • capped cost

What are your billing requirements?

Do you use BACS for payment of counsels’ fees?

Would you benefit from a Group Payment Service?

Feedback

Would you benefit from receiving a ‘standard form’ attendance note at the conclusion of each unattended hearing?

Would you benefit from the completion of a client feedback form at the conclusion of each case?

Other Expectations?

What are they, and how can your barristers meet them?


The Dispute Resolution Team

Discussion paper 

This paper will consider:

  • The way forward for ‘dispute resolution’ as a process.
  • The dynamics of a ‘dispute resolution team’.
  • How best to integrate the ‘dispute resolution team’ with other disciplines.
  • How to market ‘dispute resolution’ as a favoured approach to conflict.

The way for ward for dispute resolution as a process

“Mediators are experts in getting people to make their own deal”[1].

 Those few members who, with me, trained in mediation back in 1999, will realise just how far ‘mediation’ and the dispute resolution processes have developed since those early days. Then, the focus was on a single, simple process-method of non-evaluative facilitation. Trainee mediators were taught that mediation was necessarily voluntary, confidential, guided rather than steered, and unenforceable. That same year, the Woolf reforms in relation to civil justice signalled a new route; and the real implications of reform (not then fully appreciated) started to show[2]. Now, pursuant to CPR r1(4)2eCPR r44.3(4)(c) is being used regularly by judges to promote alternate dispute resolution against the sanction of costs[3]. Before commencing civil proceedings in Italy[4] compulsory mediation has been held by the European Court[5] to be compatible with Art.6[6], opening the way to the use of mediation as a ‘gatekeeper’ to civil justice in disparate fields should any EU national government choose this route[7]. In the USA mediation is ubiquitous. In China, Minister of Justice Wu Aiying told the National People’s Congress (NPC) Standing Committee that, “Mediation should be the first line of defence to maintain social stability and promote harmony.” Consequently, cross-border mediation is rapidly becoming the norm for many international commercial disputes.

 In England and Wales there is now a growing number of mediator judges[8], and a high level of awareness and support for mediation. Sir Bernard Rix, then sitting in the Commercial Court said, “Unless the parties told me that ADR was not appropriate I would make an ADR order in almost every case, seeking to find the right moment so that the process would not delay the trial”. Lord Neuberger suggested that “If mediation and other forms of ADR are to take their proper place in our justice system, they have to be part of every lawyer’s legal education”. “From their first lectures, students should gain a proper understanding that a knowledge and appreciation of mediation and ADR is as necessary a part of what it means to be a good lawyer, as a knowledge of our adversarial system and substantive law[9].” It seems that Lord Woolf’s vision, “I hope the whole process of mediation continues to flourish”[10] is still very much on track.

Clearly mediation and other forms of alternate dispute resolution are now well embedded within the civil and family justice systems, and with recent cost-saving initiatives from the MoJ[11] this will become more pronounced over the next few years of coalition government.

Mediation as a process is also a changing landscape. Many different interventions now employed by facilitators are not strictly ‘mediation’ as many of us learned it. Compartmentalised thinking about ‘the process’ is giving way to a more holistic approach of sequential mediation/conciliation/arbitration (med/arb); on occasions more directive than facilitative and even including evaluative elements in hybrid forms of ADR[12]. Facilitators (including me) regularly offer a choice of parallel or sequential mediation, conciliation, early neutral evaluation, expert determination and arbitration – using both non-evaluative or evaluative techniques. Additionally many of us are offering ‘conflict risk management’ as a consultancy service, especially in the fields of employment and workplace.

It seems to me that it is no longer enough to offer a simple, traditional mediation format forged on pre-2005 methods. Whilst others are developing and employing a more extensive tool-kit of dispute resolution with success, we ignore this at our peril.

The dynamics of a ‘dispute resolution team’ within barristers’ chambers.

“Mediation is not an event, it is an ongoing process”.

 We should move away from simply providing the ‘old mediation model’, to offer a wider range of private dispute resolution options and conflict management services. These would still include mainstream mediation and arbitration services, but should also encompass the hybrid approach to dispute resolution, presenting clients with a truly bespoke service. It is especially relevant for commercial disputes, where time and money are of the essence – particularly in ‘counsel or lawyer attended’ meetings. The first barristers to provide a principal ‘Private Dispute Resolution Centre’ outside London will become a competitive service on the international stage[13].

In parallel with offering a wider range of services, it is critical that barristers quickly assimilate the newly qualified and accredited mediators within their main practice teams. This must start with the opportunity for all newly qualified mediators to work as co-mediators with experienced facilitators in mediations on a weekly basis in chambers. The writer has considerable experience of the co-mediation model[14] and welcomes the opportunity to skill-share this with others. A co-mediation model, using two trained facilitators simultaneously in the same process may well be the unique, time-saving attraction that identifies a Dispute Resolution Team as the favoured service both regionally and nationwide.

I see it as critical that we offer the widest range of facilitators. Gender and ethnic diversity in family mediation is essential, and local and other public authorities will require providers to furnish details of both gender and cultural diversity under the requirement of their Quality Mark.

How best to integrate a ‘dispute resolution team’ with other disciplines?

“Not many judges would want to be on the bench without the tool of mediation”[16]

 I do not see any incompatibility or potential conflict between the ‘dispute resolution team’ and other specialist groupings within barristers chambers. Quite the opposite; I envisage total symbiosis. The ‘dispute resolution team’ should be a cross-discipline group, including members from all of the other teams, including the criminal team[17]. It should feed, and be fed by the other principal teams. The facilitators would promote members of the main teams – civil, employment, criminal and family – as advocates or experts to support parties in appropriate mediations. For example, in a professional standards or corporate misconduct mediation it would be appropriate to secure the involvement of senior criminal counsel to advise as to criminal justice issues[18]. Litigators in other teams will also be promoted to step in should a private dispute resolution fail.

How to market ‘dispute resolution’ as a favoured approach to conflict.

“Mediation is no longer on trial; it has proven success with an enviable success rate”[19]

In effect mediation will be clerked by all clerks within all disciplines, promoting Private Resolution processes alongside court based adjudication. It is important that solicitors and direct access clients are informed of the available options of alternatives to litigation, and the cost and time benefits of such. Clearly, cases will switch in, and out of private dispute resolution, and it is important that clerks divert cases exiting the private resolution service towards specialist litigators within the other teams.

Barristers chambers should be a ‘referring’ organisation. Encouraging more direct access would change the culture in this regard[20].  Barristers should be receiving high quality private and corporate clients in all specialist areas direct from the market place rather than simply on instructions from regional solicitors.

…………….

postscript :-

“(The defendant), when asked by the court why his clients were not willing to contemplate alternative dispute resolution, said that this would necessarily involve the payment of money, which his clients were not willing to contemplate, over and above what they had already offered. This appears to be a misunderstanding of the purpose of alternative dispute resolution. Skilled mediators are now able to achieve results satisfactory to both parties in many cases which are quite beyond the power of lawyers and courts to achieve. This court has knowledge of cases where intense feelings have arisen, for instance in relation to clinical negligence claims. But when the parties are brought together on neutral soil with a skilled mediator to help them resolve their differences, it may very well be that the mediator is able to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled the dispute on terms with which they are happy to live. A mediator may be able to provide solutions which are beyond the powers of the court to provide.

It is to be hoped that any publicity given to this part of the judgment of the court will draw the attention of lawyers to their duties to further the overriding objective in the way that is set out in Part 1 of the Rules and to the possibility that, if they turn down out of hand the chance of alternative dispute resolution when suggested by the court, as happened on this occasion, they may have to face uncomfortable costs consequence.”

Dunnett v Railtrack Plc

Paper by Stephen Twist, LL.B, FCIArb.,

Barrister, Arbitrator and Mediator (CEDR, CIArb & Med UK)


[1] The late Hon Betty Southard Murphy, US Federal Court

[2] Dyson & Field v Leeds City Council (1999); Dunnett v Railtrack (2002) EWCA Civ 303; Royal Bank of Scotland v Sec of State for Defence (2003); Halsey v Milton Keynes Gen NHS Trust (2004) EWCA Civ 576; Earl of Malmsbury v Strutt & Parker (2008), Burchell v Bullard (2005) EWCA Civ 358.

[3] note Rolf v De Guerin (2011) EWCA Civ 78 @ 41

[5] Alassini v Telecom Italia SpA (C317/080 & (C320/080

[7] note AG Juliana Kokott Opinion to the ECJ West Tankers (2005) EWHC 454

[8] Sir Vivian Ramsey J being one of the main promoters: see work in the TCC and the Court Settlement Process

[10] 21.07.00 to The CharteredInstitute ofArbitrators and the Dispute Resolution Section of The American Bar Association and ‘Unreliable Evidence’ BBC Radio 4 with Clive James

[11] MoJ Consultation Paper ‘Solving disputes in the county courts; creating a simpler, quicker and more proportionate system’.

[12] see Jeremy Lack, International Mediation Institute

[13] for example with modules of e-mediation, already piloted by the author between EU states.

[14] used by UNITE Mediation, of which he is a non-executive director and company secretary

[16] Hon Benjamin F Overton, former Chief Justice Florida Supreme Court,USA

[17] restorative justice is a dynamic field in which criminal practitioners can gain facilitation skills (and income).

[18] a technique already used in New South Wales, Australia: http://www.realjustice.org/

[19] Tony Willis, formerly senior partner of Clifford Chance, now barrister Brick Court Chambers

[20] interestingly back to the model applicable in the medieval Inns of Court

To be, or not to be? That is the Question.

Mediation training: should I?
Without wishing to sound pressing on this topic, the future for our profession will be in the hands of those trained in alternative methods of resolving disputes. Both the current government and the Labour opposition are committed to promoting Alternate Dispute Resolution. Civil, commercial and family courts are automatically referring cases to ADR (see r.1(4)2e of the CP and FP Rules) and you miss this opportunity to train, gaining a recognised qualification, at your peril. Unless you are within 5 years of either an appointment or retirement, make the commitment and get trained. It will increase your options, your earning capacity, your skill sets and improve your working practices in whatever field you practice.
Criminal practitioners should not ignore this opportunity. In 1996 my practice was 90% crime. Had I remained with simply that particular skill set, I would be in your position today. Do bear in mind that there are many other fields for those with criminal practice experience: advising and assisting in relation to professional standards issues, civil regulatory matters (licensing, firearms, health and safety etc). To practice in these fields (all of which I have done) you will need ADR experience.
My fee structure for a commercial, employment, family finance and civil dispute mediation is between £500 and £1000 per party per day; and for family facilitation (depending on the case) in the region of £750 per day. My first professional standards mediation paid outright for my training!
But mediation training is not simply about earning a living. It will affect the way you handle a plethora of situations – both professional and personal. I cannot recommend it highly enough.

Stephen Twist’s 2012 blog: Thirty Three Thesis Thirty Three

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Stephen Twist’s 2012 Blog:  Thirty Three Thesis Thirty Three

Thirty three is the largest positive integer that cannot be expressed as a sum of different triangular numbers. It is also the smallest odd, non-prime number repdigit. Thirty three is a good number.

This year it will be thirty three years that I have braved the Bar; and it has sustained me. Thirty three years of change, like an extended marathon run, with tough up-hill slopes and balmy down-hill jogs. Past are the days when clerks of the court assessed huge public funded fees; and seeing one of the thirty three female practitioners on circuit was like meeting a penguinito in the North Atlantic. Gone too are the hard winters, shivering under robes in the thirty three church-hall like crown courts (now there are 27), where the antique heating system clanked in unison with gaoler’s door. We now slide like seedy civil servants, through paper-packed offices, into video linked meetings with those we cannot feel; whilst clients arrive by taxi, and others, less fortunate,  leave in air conditioned vans.

Am I too retrospective? That is not my intention. Without wishing to sound like an old 33 rpm long playing record, I simply want to review – from whence we came – where we are going. In my annual clearout, I flicked through an old ‘York Chambers’ brochure listing thirty three tenants. During my thirty three years, rather than the current sixty eight circuit silks, there were but thirty three in regular practice. Over the last couple of decades, as a profession we have become to expect growth and improvement year by year; our Bar numbers have swelled to over 12,000 (a 33% growth in the last decade) of which 33% are women, and @33 are Chinese; on buoy of public funding, way out of proportion to available work.

2012, a leap year, (unless the world ends in Armageddon on 21 December according to the ‘Great Cycle of the Long Count’) is the year in which the newly formed Dere Street Barristers leap forward and grasp the challenges of the future for the Bar.

This is the year that we tune both our future, and the values that will carry us there. The future is partly hidden behind the smoked glass screens of Whitehalland the Ministry of Justice, but we can plot a route, and most certainly identify some of the heart-held philosophies that will guide us, through what threatens to be a 33% reduction in fees.

So, what may they be? Mine is usually a lone, isolated and somewhat eccentric voice that comes from the wings, rather than the main stage. Perhaps my function has always been to be a prompter, rather than a player. Back on 17 June 2003 I presented my paper on chambers merger “To build on a multi-centre concept to achieve a dominant position in the north east of England, providing the complete range of direct and indirect legal services from Morpeth to the Humber”. Whatever happened to that?  So here are my 2012 prompts.

First, I would like to revive another old paper, that from 01/10/01 in which envisaged chambers as a main national and international player, rather than a provincial one.

International Links

Let’s face it, there is a plethora of provincial chambers whose horizons and reputation extend not beyond the penultimate court centre on their circuit. For distinction, read difference. The difference of Dere Street Barristers is not simply one of size, but of composition and ethos. Unknowlingly, we have brought together some of the most dynamic minds and imaginations in the region which, when pitted against the national norm, are quite astounding. At all costs, we must avoid being seen simply as a large ‘circuit set’.

The North East of England is not a recognised international hub, nor yet to my knowledge do Dere Street members have significant international practices. Both are possible, and the economics of international association are not just those of commercial opportunity. They include:

  • international corporate profile, including marketing;
  • shared values, intellectual and educational links abroad;
  • joint development opportunities with other groupings;
  • professional and social opportunities, with associated tax deductible advantage.

International links can start with simple, informal association of individual practices, and the opportunity for Dere Street Barristers and our sister ‘firms of attorneys’ to advertise a shared international profile. This will require no further commitment than the mutual recognition of an association between us, and the willingness to publish and advertise the association on our web site, brochure and letter foot.

Business opportunities would inevitably arise. Initially, for those who have a commercial dimension to their practices; then for those of us who seek an international profile – in personal injury / clinical negligence expert determination, cross jurisdictional family practice, international fraud practitioners, or as cross-border mediators or arbitrators.

As important, our international profile would provide Dere Street Barristers with that extra ‘caché’ to assist us to our goal as true market leader in the North East. Our profile would change from ‘another circuit set’ to ‘International Advocates and Practitioners’.

If our new venture is to be marketed as part of a dynamic project of expansion of influence and market, contiguous international practice development will help to maintain a distinctive corporate identity for Dere Street Barristers.

Action plan for International Association

  1. Prepare a list of the business, social, cultural, educational and promotional benefits of international association. Circulate this and obtain agreement to the objectives.
  2. Identify two or three firms of attorneys: in Beijing, New York and Strasbourg where there are like minded members who share our interest in professional and ethical association. Remember that cultural and social links are as important as practice opportunities.
  3. Prepare a ‘protocol of association’, to identify and highlight the common objectives of corporate co-operation.
  4. Set a realistic timetable to launch and promote our developing international identity. Invite members of our European, far east and USA associates to our launch.
The voluntary sector

Second, I would like to encourage members of Dere Street Barristers actively to re-assess to their personal, domestic profiles.

Many of you will know that, for the last 33% of my practice years, I have devoted small amounts of time to a regional charity. Having volunteered to become a UNITE Mediation facilitator, I went on in time to assume the roles of Board Director, Company Secretary, mediator and tea boy.

Do not be deceived by my act of charity; my association with UNITE has delivered exponential personal benefit, both professionally and socially. For each hour I have given, I have received training, experience, access to business systems and models, new skills, business contacts, and friendship, which eclipse the effort. What have I learned?…..to work collaboratively, to run a company, to act as a trustee, to listen, to value the opinions of others, to cherish local connections, to know that giving and receiving are two parts of the same concept where they involve effort rather than just money.

Dere Street Barristers will be judged not just on its professional profile and turnover (whether national or international), but on individual contributions, especially in its regional setting. Members applying for silk or judicial appointment will be appointed not simply on their professional successes, but on their community contribution. What better reasons would you need for making a modest commitment of this kind?

Anyone (including those in the criminal team) wanting to know more about community directorships or charity legal advisers should contact the writer, who will be able to make the necessary introductions that will change both your future and your life.

Postscript

Well, what of our lives together? I am delighted with my new association with my new brothers and sisters at ‘thirty three’. Those of you at that number have been most welcoming to one of this number.


Stephen Twist 2012 : the blog.


Photo courtesy of the Guardian

Welcome to Stephen Twist’s Barrister blog. This is where both you and I may say the things we always wanted to say, but never found the time to express.

The blog is open for contributions from barristers, their clerks and administrative team, the solicitors and legal executives that instruct them, and other interested parties.

A few ground rules:

  • This is an open blog. Think before you write, and publish knowing that your comments may reach a wide professional readership, and beyond.
  • Write under your own name. Anonymous entries, unless with prior approval, will be deleted.
  • Ensure that your comments are respectful, and if challenging, are on a principled basis rather than a personal attack.
  • Feel free to press the boundaries, but remember that to protect the opinions of others is why as barristers we are here.
  • Enjoy writing, commenting and posting your thoughts and ideas.