Alternatives to Court are not being used by divorcing couples. Why?

Legal aid cuts may be to blame for a dramatic fall in the number of couples seeking to reach divorce settlement via so-called ADR – alternative dispute resolution – methods of dealing with legal disputes outside of the court system.

ADR solutions include family mediation and collaborative law. Figures released by the Ministry of Justice show that the number of divorcing couples attending ADR to try and reach agreement, rather than using the Courts, fell by close on 40% following changes to the legal aid system which have reduced the availability of public funding to assist with the costs of ADR.

There is a concern that as the cuts mean fewer people are taking proper legal advice, in turn fewer are being directed by solicitors towards non-Court based solutions to reach agreement and settlement in divorce and separation cases.

But as part of Family Dispute Resolution Week during November 2013, Resolution, the nationwide group of family lawyers and other family law specialists, commissioned a poll via ComRes which shows that whilst the legal aid cuts are partially responsible for the drop in the number of couples turning to ADR in a bid to avoid the costs and stress associated with pursuing divorce settlements through Court, a lack of public awareness of the options available to divorcing couples is also to blame.

Over 4,000 adults were interviewed during the poll, and a “worrying lack of awareness” of the existence of ADR solutions was evident, with “patchy understanding” and “ill based scepticism” amongst those taking part.

For some divorcing couples, making an application Court is the only way forward. However, for many other people, possibly even the majority, family mediation and collaborative law offer what are often better solutions to family law problems.

The Resolution commissioned poll revealed that:-

• Just 50% of those taking part would consider an ADR solution rather than going to Court if they were to divorce – but the same percentage said that they thought ADR was better for the “wellbeing of couples” and “better for the wellbeing of children”

• Only 23% felt that ADR solutions made the separation terms agreed “clear” to those involved

• Under 25% felt that ADR solutions “protect the rights of both parties”

• 36% did not actually know what Family Mediation was

Having couples going through divorce avoid the Court system is an admirable intention of the Government, but it seems that in practice legal aid cuts together with the fact that the alternatives are not widely known to the public will mean that the numbers taking advantage of ADR may remain low for some time.

Looking for a local Family Mediator? Call our specialist team today

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Does family mediation and collaborative law suit everyone?

The painful silence

Separation and divorce are often times in life when emotions are raw, old certainties have painfully evaporated and trust in an ex-partner might have turned to dust. It is the one time in a person’s life when clarity of communication between them and their ‘ex’ could start to build a stable foundation for future relations, but when usually effective communication can be at its most difficult to achieve; indeed poor communication is a very common contributory factor in relationship break-ups.

Talking helps

Family mediation and collaborative law both offer frameworks within which to establish the much needed communication required to reach a fair, balanced agreement in a mutually respectful way, without the hugely expensive recourse to going to court. Might the parties be ready for either of these approaches? How can they be sure?

Might it work?

Since April 2011 ex-partners considering settling their separation agreement in court have been required to separately attend a meeting with a professional mediator to discover if they are both in a space that would allow them to benefit from alternatives to the court option. In circumstances where one partner has abused the other or the children, physically, sexually, psychologically or economically the family mediation and collaborative law options are immediately excluded and the divorce settlement would have to be handled in court. In other circumstances there might be real hope for either of these exceptionally successful approaches.

A principled approach

Essentially both parties have to be willing to accept mediation or collaborative law and feel that one or other is a suitable method for them. Both are voluntary processes. In mediation there is no blame apportioned and the mediator does not undertake to advise or take a partisan position; he or she is neutral communication facilitator. Such a dynamic might of course prove to be less than optimally effective if one of the parties is clearly a much more dominant personality than the other.

Incentives

In collaborative law, a process which can prove to be as expensive as taking the matter to court, each party is accompanied in the meetings by their collaboratively trained solicitor and so the issue of the dominant personality gaining some advantage is usually neutralised. Over and above the initial goodwill necessary to initiate the process, the major incentives to make collaborative law work is that should it fail, the parties are forced to find other solicitors to represent them and disclosures made during the process cannot be subsequently presented in court. There is also the huge benefit of avoiding a confrontational arena which offers little opportunity for direct involvement by the divorcing couple and every prospect of stripping one or both of the parties of their emotional energy, money and dignity.

Not for everyone

Of course in some cases where heads remain hot and hearts remain broken, the desire of one party to impoverish and psychologically distress the other will render both family mediation and collaborative law unsuitable options. A high level of openness and honesty are required to make either approach work – hidden agendas will usually bring about the failure of either option. Thus we see quite clearly that whilst family mediation and collaborative law will not be suitable for everyone, they remain bright beacons of hope for the majority.

Call our experts for further advice on family mediation or collaborative law

Our expert family law team will quickly be able to determine whether or not your case is suitable for family mediation or collaborative law. Call us today

SALISBURY [01722] 422300

AMESBURY [01980] 622992

ANDOVER [01264] 364433                

OR e-mail our team using the email contact form below

Comments or questions are welcome.

* indicates required field