There is no doubt that the court process is damaging to families a fact that has been recognised within the legal profession for many years. The cost of divorce and separation is not simply monetary. It has a knock on effect on people’s health, in the work place, in schools, on children’s psychological and emotional development and in many other ways. Of course there has to be a better way. But we must proceed with a degree of caution.
Alternative Dispute Resolution (“ADR”) is the answer in some, even the majority of, cases but not all. There will still be cases where the playing field between the couple is not level and will not be made level by ADR. Some examples of this are:
- Domestic violence
- Domestic abuse of a non-physical kind
- A stark difference in numeracy, literacy, self-confidence.
- The inability to sit in the same room together
- Downright dishonesty and nastiness. 10% of men say they are willing to be dishonest in financial disclosure according to a survey conducted by Mishcon de Reya which was reported in The Telegraph on 17th October 2010.
And ADR is not the answer if the UK Government promote it because it is cheaper. The words “cheap” and “justice” logically do not belong in the same sentence.
It is far too simplistic to say that all private law disputes about children should be settled outside the court arena. The statement completely fails to take into account any understanding of human nature and human relationships both of which are unendingly and unfailingly complex.
The judicial and court statistics for 2008 show that the vast majority of financial cases – 93% – are uncontested or resolved by consent having initially been contested. Although not without its flaws the Financial Dispute Resolution hearing (the second of three court hearings leading to an adjudicated outcome) has done its part in increasing this percentage. ADR in its myriad forms is already part and parcel of the family justice system in this country.
But ADR will only be a more complete answer to the Family Justice Review if the separating public are properly informed of all the options open to them and assisted in deciding which option best meets the needs and interests of their family. This means providing more than a tick box exercise.
The information needs to be provided by those people who can talk authoritatively, based on experience, of what the different options entail, their advantages and disadvantages. Though the Government may not want to hear it, those people are primarily family lawyers though anyone with experience of all forms of ADR will do just as well.
Resolution has produced a first rate process options leaflet. This leaflet – or a similar one – should be made available in doctor’s surgeries, CAB offices, schools, libraries, supermarkets and so on. It is meanwhile available on line via the Resolution website – www.resolution.org.uk/
ADR is not new to family lawyers or divorcing couples. Lawyers have been involved in resolving disputes outside the courts for many years and the upsurge in mediation and huge interest in collaborative law across the profession – long before the Family Justice Review was heard of – is testament to that.
Our message to the Ministry Of Justice is yes, please support ADR – in all its forms. But do not support it by making access to court based justice impossible. There is no harm in aiming for the day when ADR stands for Appropriate Dispute Resolution but we cannot presume that on that day the need for judicial decision making will have disappeared for ever. Without that possibility there will be no adequate protection for the vulnerable against the unscrupulous, the control freaks, the bullies and the manipulators.
For more information please contact firstname.lastname@example.org
A longer version of this blog was given as a talk by Gillian Bishop at the Gingerbread talk of the same title on 27th October 2010.