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.

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