The president of the family division has dlievered a speech about the benefits of avoiding Court. https://www.bailii.org/uk/other/speeches/2022/344JJ.html
He asks “When families fall apart, do they fall too easily into court?“ Lord Macfarlane says that:
“To be a child who is the subject of disputed court proceedings is not a happy experience. Indeed, it is potentially harmful and can lead to long-term adverse emotional and relational damage. In the same way, it is not a positive or beneficial experience for parents to be locked in a contest with each other before a court for a period of a year or so. Because the Family Court is dealing with the rearrangement of human relationships, and the human beings involved plainly have to go on living in those relationships once the court case has finished, the adversarial nature of the court process is unlikely to have a healing impact on the participants.
The potential for a child to be harmed by parental conflict was neatly summarised in the excellent report called `What about me?’ published last year by the Family Solutions Group, which had been established at my request. They said:
`It is critical to recognise that children are at risk of harm when parents separate. Family breakdown is a time of great vulnerability and research has consistently shown that unresolved parental conflict is harmful to children. Destructive inter-parental conflict affects children of all ages, across infancy, childhood, adolescence, and even adulthood. The way in which parents communicate with each other impacts children’s long-term mental health and future life chances.’
There has got to be a better way for separated parents to be supported and enabled to resolve disputes about the future care of their child without embarking on court proceedings. I laid out longer term proposals for a better way in a speech made in Jersey a year ago, but rather than waiting for fresh resources or government intervention, there is much that a parent in this situation can do for themselves to avoid going to court. To turn at last and very briefly to the title of this address, it is my very firm view that far too many families simply turn to the court rather than seek less harmful, swifter, cheaper and potentially more enduring ways of resolving their disputes. I should stress that these will be cases where there are no issues of domestic abuse or child protection. I am speaking about disputes about the care arrangements for a child in ordinary circumstances where, as my theme so far has suggested, it is for the parents each to take responsibility for respecting and meeting the need for their child to have an ordinary relationship with the other parent, despite the falling out between them as adults.”
He refers to the following means of resolving disputes, including mediation:
- DIY or Kitchen Table Agreements: here the label says it all. Many couples are able to sort out untangling their arrangements and responsibilities by talking matters through and without the intervention of any professionals or court orders. There are now a good number of self-help resources online or in print and, for those that can, an amicable settlement is worth not only the legal fees that it may save, but is also valuable for the comparative absence of bile and ill-will. A true agreement to which both parties have signed up is also likely to endure.
- Mediation: Mediation is the most prominent form of professionally led non-court dispute resolution. A mediator does not judge the couple, or impose his or her own view onto them. Instead, the mediator leads the parties through a structured conversation with each other with the aim of achieving an agreed outcome. The mediator will charge a fee, but Legal Aid is available, subject to a means test and, at the present time, the Ministry of Justice is also providing funding through vouchers worth £500 per couple.
- Hybrid or lawyer assisted mediation: Where one or both of the couple have their own lawyer(s), the lawyers may be present for all or part of the mediation or otherwise be involved in the process. Just because a party has a lawyer does not rule out mediation.
- Child inclusive mediation: where both parents and the child agree, a mediator may meet the child separately to discern the child’s wishes and feelings for the future. The mediator will discuss with the child what, if anything, is fed back to the parents. The child will not be asked to decide the issue themselves.
- Collaborative Law: Many family law solicitors are specially trained to act in a collaborative manner, rather than in the traditional combative manner. The lawyers for each party work together to help a couple to sort things out; they do not work against each other or try to `win’.
- Round Table: Where both parties have lawyers, who are acting in the more conventional manner, it may often be advantageous for there to be a meeting (round a table or online) to investigate options for settlement.
- Arbitration: Arbitration is, in effect, private litigation where an appointed arbitrator, rather than a judge provided by the state, is contracted to hear about and then decide the issues. Both parties have to agree to be bound by the arbitrator’s decision. There are advantages over using the Family Court in that the parties and their lawyers choose the arbitrator, book suitable premises for the hearing and do so on a date and time that suits them, rather than waiting for the court office to find a hearing date in the list before an unknown judge. Whilst arbitration is more readily suited to resolving financial issues, it is now being more widely used for determining disputes around a child’s welfare.
- Arbitration/Mediation: Here an arbitrator may direct that the parties engage in mediation, but return to the arbitrator in the event that issues remain unresolved.
- Online: there are now some online services who will assist in completion of court forms and other steps in the process.
- One couple, one lawyer: as a result of the amendments made by the Divorce, Dissolution and Separation Act 2020, which allowed couples to make a joint application to end their formal relationship by divorce or partnership dissolution, there is now a market for legal advice to be given on the `one lawyer, two clients’ (or `one couple, one lawyer’) model. `The Divorce Surgery’, an early entrant into this field, is an arm’s length agency run by two members of the Family Bar. For a fixed fee, which varies depending upon the type and complexity of the issues, the Surgery will appoint a barrister to meet with the two parties, absorb the relevant detail from each about their circumstances, and then deliver advice as to the likely outcome if the contested issues were to be litigated before a court. The model is applied to issues relating to both finance and children. Resolution, which is the umbrella organisation for Family Law Solicitors, has now launched its own one lawyer-one couple scheme [`Resolution Together’] meaning that this option should now be much more widely available throughout the country.
- Early neutral evaluation: this is very similar to `one couple/one lawyer’ but is likely to be an option used where each party already has their own lawyer. A respected expert lawyer is chosen by the lawyers to look at the issues in the case and provide an early indication of the likely outcome if the issues were to come to court.
- Private Financial Dispute Resolution Judge: This is a further variation on early neutral evaluation that is used in financial disputes, where a privately instructed senior lawyer, or retired judge, conducts a more formal process by which the case for each side is challenged by the judge before she or he gives an opinion as to the likely outcome at court.