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Do Lawyers Really Want More Friendly Divorces?

Posted: 02/10/2012 13:02

In the week following Norwegian statistics showing that couples who share the housework are more likely to get divorced, and concern over the recent figures indicating a rise in the divorce rate in the UK, the national family law association Resolution are running their first ever Family Dispute Resolution Week.   

But is this merely a necessary reaction to the continued push from Government for mediation over court battles, or is Resolution - who represent 6,500 lawyers in England and Wales - finally leading the way forward into encouraging non-adversarial divorce?

Resolution lawyers maintain that they have always been non-adversarial and try to find the least painful route through divorce for their clients.  But even if that is true on an individual basis, with many regular family lawyers preferring amicable settlements,  the current legal system seems to reward them financially if couples get the gloves off for a full-on court battle.

Is it truly the case that Resolution as an organisation has done enough to lead the way out of the courtroom towards the negotiating table?  If so, why has it taken 16 years to publicly promote non-adversarial solutions in this way?

The Family Law Act of 1996 encompassed the view that mediation was a helpful way forwards to resolve issues resulting from family break-down and thus prevent long-drawn-out court battles.  Sixteen years later, Resolution dedicates a week to promoting alternatives to adversarial divorce.  Could the slow response be due to the fact that not all mediators are Resolution accredited?  For example, National Family Mediation trains mediators and offers a national service, and although couples are encouraged to seek independent legal advice at various stages of the process, using the lawyers themselves as the gatekeepers to divorce is no longer being seen as necessary.  As people seek information through the Internet, access stay-out-of-court resources like Divorce in a Box, and begin to take more control over their own divorce process, it does look a bit like Resolution has reacted to a situation they can no longer ignore, rather than boldly led the way forwards to a better way of doing things. 

It may also be challenging for an organisational body that must represent all its members, for it to stand tall on the platform of dispute resolution, when some of those members are openly hostile towards mediation and collaborative law, publicly claiming (contrary to studies that prove otherwise) that they don't work.

A recent opinion poll conducted by ComRes to coincide with Resolution's Family Dispute Resolution Week confirms the importance of providing support to families undergoing a divorce or separation. The poll found that the overwhelming majority of people in London believe that putting children's interests first or avoiding conflict are the most important factors when undergoing family breakdown. 

Rayden Solicitors in Hertfordshire have chosen to promote their collaborate lawyer through the Divorce in a Box web directory which is significant, as many collaborative lawyers complain of a lack of collaborate clients, and until now there has been very little effort made my family law firms to actively promote the practice, which is probably why so few members of the general public have even heard of it.

Innovative law firms like Family Law In Partnership who focus on non-adversarial routes such as mediation and collaborative law, are putting packages together for clients offering parenting and wellbeing support as they recognise the huge role that such support can play in increasing the success of alternative dispute resolution.  

A new guide to dispute resolution has been made available by Resolution, entitled "Separating Together: Your options for separation and divorce." The booklet can be easily downloaded and is clear and accessible, and it has some links to some useful organisations, and it encourages parents to: "Take care of yourself. Make sure that you have support around you to help you through this period, without leaning on your children or burdening them with your anxieties."  This is sound advice - but there is no clear suggestions on what kind of support would be helpful, for example, the kind of support that will help them to be able to sit around the negotiating table with someone who makes their blood boil, or help them to deal with an ex who they feel emotionally traumatised by when they are in the same room with them.

So do lawyers really want friendly divorce?  

There are certainly many who see alternative routes as unrealistic and feel that it is down to the couple rather than the divorce method as to whether they stay out of court or not.  Others genuinely dislike going to court, and an increasing number have trained in mediation and collaborative law and openly say they would prefer all their clients to use those options. 

When I speak to collaborative lawyers and mediators, they often find that the anger and pain of family breakup blinds the couple to the other options available, because they are not emotionally and psychologically able to really take that level of responsibility at that point.  Like the doctor in the white coat offering cures, the couple see the lawyer as a professional who they expect to sort it all out for them and make the pain go away.  However, if that same couple had experienced some communication coaching, parenting advice, and discussed their financial futures with the help of a financial planner and a life coach, focusing on creating a new and positive future rather than on the suffering of their present situation, then suddenly non-adversarial routes become much more logical and appealing.  And if they get stuck on a specific area in mediation, for example, instead giving up and going to court where the whole process often unravels and begins all over again, they can call in an arbitrator to decide that particular outcome for them, without having to lose the benefits of what they have already agreed to.

Instead of blaming the failure of some couples to engage in mediation and collaborative law on the couple themselves, is it not appropriate for Resolution to take a more holistic approach and encourage greater collaboration between their accredited mediators and collaborative lawyers with divorce coaches, wellbeing and parenting experts, and even start-up business opportunities to empower the couple to feel more hopeful about their future financial independence?

We may now see an increase in divorce coaches and products like Divorce in a Box becoming the first port of call for couples considering breakup.  If so, then family lawyers have every reason to be nervous of losing their status as the gatekeepers of divorce, as couples become increasingly able to choose a wider range of routes which will have a direct effective on the income of many family solicitors.  

What is most disturbing about the ComRes poll is that despite the overwhelming desire to avoid conflict, three quarters of people believe that children end up being the main casualties of divorce and over a third believe that conflict is inevitable in family breakdown.  So in order to change this perception, what we need is not just a gathering of mediators and collaborative lawyers at a Resolution conference.  We need a culture shift throughout the UK that will change the expectations of parents as to how they navigate family breakup.

Many families like my own are still termed 'broken families' with a single parent at the helm.  But the reality is that our families are not broken.  We co-parent effectively with our ex-partners, as extended families, and one of the key factors in being able to achieve this is not to have undergone a bitter and expensive legal battle to separate the lives of the parents, the biggest cost being born by the children.

 

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