THE BLOG
25/11/2013 12:37 GMT | Updated 25/01/2014 05:59 GMT

Court Is Not the Only Option for Separating Couples - Greater Awareness of Dispute Resolution Is Urgently Needed

Each year more than 230,000 people in the UK go through the traumatic process of divorce. The process if often stressful, costly and - particularly when children are involved - it can be complex and needs to be handled with great care by all those professionals involved. Yet, contrary to popular belief, the vast majority of divorces don't require a full-blown court case to resolve these often difficult and sensitive issues. While some couples, thankfully, are able to agree things with the bare minimum of legal input, for those who require help the legal system has developed a number of processes, collectively known as dispute resolution, that avoid the need for court altogether.

In fact, the best way of resolving issues fairly - particularly in managing the long-term interests of children, and the financial position of both parties - often lies in these non-court based solutions. Yet, new polling published this week finds that the majority of British people, including those going through a break-up, remain ill-informed and sceptical about dispute resolution with the result that millions of people falsely think that court litigation is their only option.

Dispute resolution encompasses a number of different approaches to break-ups, all of which share a common goal: reducing confrontation and encouraging co-operation. There are three main procedures that fall within this umbrella. There is mediation during which a trained and neutral mediator helps both parties talk through all the issues. There is the collaborative process during which each partner choses a specially trained lawyer and choose which topics to focus on and whether to involve other experts, for example, those trained to help children through break-ups or pensions specialists. It leads to an agreement committing the couple to resolving the issues without going to court. Then there's family arbitration, which can help resolve financial matters, whereby an arbitrator - much like a judge - is appointed in agreement with both partners, and gathers all the evidence and then gives a ruling, to which the couple agree to be bound.

There are also less formal processes, such as negotiations between solicitors, or the 'kitchen table' approach, where a solicitor provides advice about what needs to be agreed to help couples to negotiate a settlement themselves. The majority of those who go through these processes find them constructive and helpful. Yet data published today shows that just 51% of the public would even consider trying a non-court-based solution. So why such cynicism and what can be done?

Firstly, all of us in politics and the legal profession need to start de-bunking some myths about the legal status of dispute resolution. Regardless of whether separating couples go through a court case or a form of dispute resolution, divorce is a legal process which requires a legally binding outcome. Yet, the new polling published today highlights widespread misunderstanding about this. Less than a quarter of those polled said that they thought that non-court based methods of divorce "protect the rights of both parties". Similarly less than a quarter also said they thought the terms of separation under dispute resolution processes were made clear to couples. In fact, all forms of dispute resolution are designed specifically to be the springboard for fair, lasting, and crucially legally binding outcomes. Take mediation: it leads to the creation of a memorandum of understanding which can then be converted into a court order, resulting in a legal document, the content of which has been agreed by both clients.

Perhaps it is partly because we're saturated by tabloid headlines depicting high-profile divorce cases, and we've become inured to the apparent truth that a divorce requires a court battle to resolve it. But the vast majority of those who separate each year are not hell-bent on settling scores - most of us don't like conflict, it's just not in our nature.

Secondly, recent cuts to legal aid have had a devastating impact on access to legal advice for the least well off. Despite government focus on increasing uptake of mediation, publicly funded mediation numbers are down nearly 40% since the legal aid cuts. This is undoubtedly a result of fewer people now having access to free legal advice, so fewer couples are being directed by solicitors towards solutions other than court. I share the Government's goal for separating couples to avoid the courts where possible. But the figures don't lie and recent policy changes are having the opposite effect, because in the absence of legal aid people are less likely to see a family law professional who will talk them through all their options.

The sad fact is that 42% of marriages end in divorce, typically within 12 years - just at the time when many couples have dependents and for whom the process can be confusing and stressful. Dispute resolution processes are tailored to the demands of each break-up and the very job of specially trained family lawyers is to help couples to decide which option will work best for them with a particular emphasis on their children. For example, lawyers who are members of Resolution - a body representing 6,500 family law professionals in England and Wales - will often ask a separating parent, "when you look back at your divorce in 20 years, what do you want your children to say about the experience"?

We could all do with being a little better prepared for what options are open to us in the event that we face this prospect ourselves, but understandably, people don't enquire about divorce during a happy marriage. It's a responsibility that lies with all of us. But Government and the legal profession in particular need to do more to champion alternatives to court and help minimise the stress and cost of separation for hundreds of thousands of people every year.