Tag Archives: finances on divorce

Mediate not Litigate

And that is the rallying cry of Mr Justice Holman in the case of Ekaterina and Richard Fields http://www.theguardian.com/uk-news/2015/may/13/judge-divorce-couple-ekaterina-richard-fields-settlement

The couple have been married about 10 years, have two children, and at the start of the case, the Judge has urged them to try and resolve their financial issues without the intervention of the court.  He explained that court hearings can be “awful” and described them as being like a boxing match.  The couple’s fees are expected to be in excess of £1 million by the end of the trial, and the Judge asked them to consider what else they could have spent the money on.

As a mediator and a solicitor, I am aware that some cases are suitable for mediation, and others are not.  For most however, it’s a question of timing.  At the start of the separation, feelings are very raw, with clients ranging from angry to distraught.  This is usually when clients are told about the benefits of mediation.  This is usually when most people are not ready to try and work with their ex – there is likely to have been a massive breach of trust, and by embarking on the mediation process, clients have to trust their ex to make the process work.

By the time the court system kicks in, many clients are weary of the process, are fed up of paying legal fees, when they don’t feel like they have got very far, and are more likely to be receptive of mediation and the benefits – it’s quicker and cheaper, and far less stressful, and clients can dictate the pace (provided they agree).

What is the answer?  Our system is built on the basis of litigation.  There have been various suggestions over the years, as to how to improve our divorce system – by introducing no fault divorces, and by having a “cooling off” period.  The difficulty is that our system is a one size fits all and as a practitioner of over 20 years, no two divorces are the same.

Mediation needs to be promoted, not as an alternative to litigation, but the main option.  It is only when mediation is at the forefront that people will be more accepting of the system.

Some clients think that having a judge make a decision is somehow easier than making a difficult decision for themselves.  It is only when they have been in litigation for a few months do they realise that that isn’t the case at all.

The Changing Tide

 

child with milk caught in the middle isolated on white

 

I have recently read a series of articles, which I think are all related to the Government’s legal aid cuts in family law.  The first was how the Government is announcing a £2 million support package for separating couples, the second was how there has been a decrease in cases concerning children as a result of separation or divorce by 25% in September, and the third was about the address made by Simon Hughes that more people are resolving disputes outside the Courts.

As a mediator, it is great to see that the Government are really encouraging mediation, and are really trying to promote the positive benefits of achieving an out of court settlement, in relation to children and/or finances.  As a mediator, there are few cases that are unsuitable for mediation, and this is why the Government feel that everyone should be using it.  The reality is that for some people, it is not the right time.  What the Government have failed to take into consideration is that the breakup of a relationship is really emotional.  People are quite often in different places emotionally, and this makes sitting in a room with the other person really hard.  Quite often, people feel angry or bitter, and this prevents them from being able to make rational and good decisions about their future, and their children’s future.  Sometimes both people feel angry or bitter towards the other, and are simply unable to make decisions together.  Quite often it can take a long time for parents or ex partners to get over a break up.  It is for these people that the Government’s policy regarding legal aid has had the biggest impact.

Mediation is great for some, but is not a panacea that cures all ills, and the Court system is still vital for some families.  It is no surprise that there has been a 25% reduction in September in respect of Children Act applications for a Child Arrangements Order (contact and residence as was).  As a solicitor, I see a lot of clients for the first time, and they are simply not in a position to pay for solicitors to represent them through proceedings.  A lot, I know, will walk away, without seeing their children.  This has a massively damaging impact on the children.

I am pleased that the Government is now using some of the money that it has saved with the legal aid cuts, on supporting separating couples.  I am really proud that in Huddersfield, the local firms all support the Legal Support Service, where a “duty” solicitor speaks to people who are acting without a solicitor and who have a case in Court at that time, to offer them some guidance on how to present their case and what to expect.  The Government are piloting that at certain court centres, with the aim of rolling it out across the country.  The work appears to be done by the Personal Support Unit, LawWorks and Law for Life.  However, whilst this may alleviate the burden on Judges, it still doesn’t go far enough in helping clients to make sensible decisions about their future.  I know that Resolution, the Family Law organisation, was trying to get the Government to fund solicitors offering one advice session, so that at least separating couples were getting some legal advice from the outset.

The other positive thing is that the Government is funding a CAFCASS-run Helpline, for parents wo have been unable to resolve disputes, and want to avoid court battles over their children.   However, it takes two to tango.  If one parent is not in a position to negotiate, or try and make arrangements, the Courts will still be needed to help to sort the situation out.

Sadly, I fear that due to the Government’s policy, and lack of understanding about separation, many children will go without seeing a parent, and many couples will find that they have madeunsuitable agreements about financial issues because they can not afford legal advice.