10 October 2012

Warring litigation: condemned to the Museum of Curiosity?

On the way home last night I caught a snippet from the radio 4 show, Museum of Curiosity and heard Jo Brand arguing that childhood should be given a place in the museum because the concept is becoming extinct in today's society. I wondered if that was true. There's no doubt that today's society value children very highly. In some families young children are involved and consulted on all the main family decisions, but are they exposed to too much, especially when parents are separating. One in three marriages now end in divorce and the ramifications for children when parents separate are now starting to be considered. In a recent survey undertaken by the family lawyers association Resolution the vast majority of those surveyed agreed that children end up being the main casualties of divorce. However although there was strong interest in keeping the divorce as conflict-free as possible in order to minimise this affect, over a third believe that conflict is inevitable in separation and divorce and 42% of those polled thought that most divorces involve a visit to the court despite the plethora of non-court alternatives available. This is simply not the case anymore and it is our responsibility as professionals to get this message across. Clearly, many parents have good intentions to prioritise the well-being of children and to avoid conflict during divorce or separation, but this can often be derailed by a lack of knowledge of non-court based options and an exposure to the adversarial nature of courts. Something is going very wrong, and often the result is emotionally and financially drained parents, and deeply distressed children. Last week marked Britain's first Family Dispute Resolution Week and it came not a moment too soon! More and more I am finding that clients want to investigate different ways of resolving matters following separation. I have seen two new clients only today and both of them are on opposite sides of the spectrum in terms of the issues they are facing and the assets that fall to be divided. However, both couples are agreed that they want the impact on their children to be minimal and want to consider non-confrontational ways of resolving family breakdown which will help them to resolve their issues in a holistic way. I'm not naïve and I know that this is not always possible for all issues to be resolved by a chat around the table. However the Family Dispute Resolution Week has sought to highlight the vast array of options that are now available, in place of traditional litigation. The court framework is not intrinsically wrong, and for some, it is the only effective way of moving forward. However there are problems with the current system. The courts are already struggling to cope, and are likely to be even busier when the legal aid cuts take effect next year, with more people trying to navigate the family justice system on their own as a result. There is no doubt that delays are frequent, with the courts under so much pressure, it can be difficult to get a court listing. Cases drag on for months and in some instances years. In addition, family legal aid has been cut to the bare minimum and many people are now representing themselves. Couples who use alternatives to court are much more likely to achieve swift, fair outcomes and it is vital that lawyers play their part in enabling this. The options are impressive, ranging from mediation, collaborative law and arbitration. Something which should suit most couples. Resolution are leading by example and have recently published a new advice guide “Separating together: your options for separation and divorce” to publicise the wealth of alternatives. The guide discusses what mediation, arbitration and collaborative process really mean in practice and should be a must-read for family law solicitors as well as separating couples. Too often, litigation is the default process for lawyers and they fail to equip themselves with the tools to guide clients effectively through non-court options. But in this new era of real alternatives to Court we must get better at explaining the options. We should always bear in mind that couples can be best placed to work out what is best for them and their families. They will all be living with the effects of the separation for many years to come. As there is greater awareness that divorce doesn't just effect the couple involved but has ramifications throughout families, it is vital that all options are properly explored. I think we should rescue childhood from the Museum of Curiosity and place warring litigation in there instead.

Category: Blog