One Fifth of Divorces Wrongly End Up in Court – what are the alternatives?

Last month, the BBC spoke with the president of the family courts in England and Wales – Sir Andrew McFarlane – who discussed his view that too many people were relying on the court system to resolve, in particular, children disputes.

The president, who is a sitting Judge as well as having many other responsibilities within the family courts, also commented that the adversarial system and language often leads to further bitterness in these families. He said that the research is clear that children are impacted by their parents being in court and “parents are, I think, fooling themselves if they say we are not involving the children or the children don’t know.”

He acknowledged that the family court has an important role and many cases need to be heard in court, particularly where there are safety concerns for the adults and/or the children involved. But, for many cases, the court is being used as a first port of call rather than a last resort.

This has certainly been my experience at times, working with parents involved in a dispute. Sometimes, parents become so used to asking Judges to make decisions that going to court becomes almost second nature – rather than trying to communicate and compromise together. This leads to applications being made in relation to each and every dispute involving the child – many matters being largely inconsequential in the long-run, such as with which parent the child should spend an extra day or two over the school holidays.

It seems that it is unavoidable that children involved in these court-based disputes will, to differing extents, be emotionally harmed. So, what is the alternative?

1. Direct discussions
In most matters, parents should attempt this at least initially. Sometimes, parents can not communicate directly between themselves, for example where there has been domestic abuse during the relationship. At times, they may use a third party to communicate, a ‘contact book’ passed back and forth by the child or similar.

An increasing number of parents seem to be using apps such as Our Family Wizard, which provides a secure messaging service and calendar. Emails, Whatsapp or other messaging services can have a degree of detachment from face-to-face discussions or telephone calls, where those do not work for particular families.

2. Mediation
Mediation is a step-up from direct discussions, with the addition of a legally trained mediator who facilitates discussions, assists with communication and seeks to help the parties reach a compromise. Mediators are neutral and so can not give advice to either party.

There are alternatives to traditional mediation which can also involve the parties’ lawyers, or the child themselves. This can be appropriate where a child is older, emotionally mature and their wishes/feelings are forefront in the decision being made.

3. The collaborative process
This is a method promoted by a family-law group called Resolution. The process is highly regarded amongst family lawyers. It involves specially trained lawyers attending a series of ‘round table’ meetings with the parents to discuss the dispute in a way in which both parents can continually receive legal advice and support from their own lawyers.

The process includes an agreement not to go to court, which is intended to increase a sense of co-operation and mutual trust.

4. Arbitration
Arbitration evolved mainly in the arena of civil/commercial disputes, where it is still widely used. The process is similar to going to court, save that the parties appoint their choice of arbitrator to act as the Judge, making an ultimate decision which the parents then have to abide by. The benefits of arbitration are often around speed and cost. There is also a sense of empowerment whereby the parents are in control of the process, instead of a court.

This list is not exhaustive, and the methods available are continually evolving. Many of the lawyers at Hawkins Family Law are specially trained mediators, arbitrators or collaborative lawyers. If you are going through a separation, or in the midst of a family-based dispute and are not sure which of the above methods suits your specific circumstances, contact us for a discussion. Talk to us today in confidence – we’re here to help.

This article is intended for the use of our clients and other interested parties. The information contained in it reflects the author’s view and is believed to be correct at the date of publication. However, it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional legal advice.