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Those in family disputes wish to avoid battles, so we need to raise awareness of the non-court options
This is the first Family Dispute Resolution Week, instigated by family law association Resolution. The aim is to raise awareness of the alternatives to court when dealing with the consequences of separation or divorce.
Most commonly, mediation involves a single mediator with the parties not being legally represented, but there are various models, including the ‘shuttle’ or ‘caucusing’ model familiar to commercial litigators. Collaborative law involves the parties and their lawyers working together. Family arbitration is restricted to financial issues. Once parties agree to appoint an arbitrator they are bound by the decision and can expect the court to ratify it.
In a survey commissioned by Resolution in August 45 per cent of respondents thought ‘most divorces involve a visit to court’ and 40 per cent agreed with the statement that ‘divorces can never be without conflict’. At the same time, 78 per cent said putting their children’s interests first would be a high priority and 53 per cent would prioritise making the divorce as conflict-free as possible.
People seem to want to avoid a battle, but awareness of the alternatives to court proceedings is poor.
The Government is committed to steering cases away from the courts. This is to be supported, although limiting legal aid to mediation from April 2013 for the vast majority of family cases is wrong. Many cases are not suitable for mediation. Even where it is the right approach, most couples find out about it through their family solicitor rather than going direct. Further, legal advice is still required. Legal aid cuts will mean some of the most vulnerable in society are left high and dry.
Although this week is aimed at raising public awareness it is equally important to ensure lawyers and judges understand and support dispute resolution. Since April 2011 those wanting to start family proceedings have, with some exceptions, been expected to attend a mediation and information assessment meeting (Miam) to explore the suitability of dispute resolution.
Compliance has been patchy, to say the least. Family law solicitors should be assessing all options with their clients. When cases get to court judges are meant to challenge those that have not been to a Miam and even consider sending them away to attend one. But the evidence is that many lawyers and judges either know little about mediation or don’t care.
Attendance at Miams is not compulsory, but the disappointing response to their introduction has led the Government to flag up the likelihood of legislative change.
Resolution has produced a guide, ‘Separating Together: Your options for separation and divorce’, and there is no excuse for family lawyers not to equip themselves with the information necessary to help clients find the approach best suited to their needs. However, there is still work to be done to change the mindset of family law professionals who are focused on litigation as the be all and end all.