Can divorcing couples really avoid court?

I’m going to start by being completely frank. I don’t actually know what proportion of divorcing couples end up using court to resolve their disputes to some degree or another. What I do know is that most family lawyers tell me that they settle most of their cases out of court. This all sounds well and good until my follow-up question. This tends to reveal that many if not most of those settlements have involved the court. What I mean by this is that in many cases, one of the parties makes an application to court in order “to get things moving”.

We’re all familiar with court as a process which involves a judge or judges making a decision after listening to both sides of the argument. So for that reason alone, family lawyers know that, if they mention court as a way of resolving their clients’ disputes, their clients will have some expectation of what to expect. And if lawyers tell their clients what outcomes to expect, clients will go along with the idea of court applications in the belief that if the other party doesn’t cave in and then give them what they want, then a judge will.

But the court process is long-winded (about 9 months in divorce financial cases), expensive, stressful and unpredictable. Think about that last point: if the outcome is so obvious, how come teams of lawyers with decades of experience between them are predicting such different outcomes? And this is what slowly dawns on many whose cases are in court. Faced with massive legal costs, and with even more to come, and with their lawyers reminding them somewhat late in the day that much will come down to which party’s evidence the judge will prefer (and even that it will depend on which judge they get and even which side of the bed the judge gets out of on the day of the hearing), suddenly the lawyers earlier predictions of the outcome look rather less certain. And it’s when this reality dawns on one or more of the parties that either one or both of them decide to compromise. It’s often referred to as a settlement on the steps of the court. By the time the settlement is reached, many harsh words will have been spoken, stress levels will have rocketed, there may have been a complete breakdown in the little bit of trust that they still retained – which is bad news for any children – and much of the money they had which could have been used to help them both to start new lives, has gone on solicitors and barristers fees, court fees and VAT.

There isn’t the space in this blog to explain the differences between the positional adversarial approach of court proceedings and the interest based negotiating techniques that inform other dispute resolution processes such as mediation and collaboration. The problem is that most family lawyers do not properly understand them either and this is the main reason why many cases are still resolved using the courts. Don’t be too surprised. Lawyers are taught the law, and conflicts of law are adjudicated by the courts.

I fully accept that there will be a small proportion of divorce related disputes which require a court’s involvement, no matter how ethical the lawyers are – disputes which require legal interpretation or situations where there is a person who needs protection – but by and large these cases are few and far between. So much so that in the last five years, I have not come across one (though I recognise that my typical clients in Ipswich will be very different, say, to a practice in a deprived inner city). What I mean by that is that I have not had a client in this period of time whom I have advised to make a court application. During this same period only three of my clients’ cases have involved a court at all. All three applications were made because one party believed the other was refusing to engage properly in the negotiations. I’m pleased to report that all three settled before, at or after the first of the three timetabled court appointments.

So how do my clients resolve their disputes if they don’t go to court? I suggest a process which I think will work for them. Mediation is quick, dignified and less expensive and should suit most divorcing couples. I say “should” because if the other person doesn’t understand what it offers and their lawyer doesn’t understand it either, mediation may simply not be possible. Mediation can take place over the phone or in different rooms. Any mutual proposals reached can be taken to lawyers to check over and the lawyers can turn the proposals into a binding agreement if the clients want one.

Then there is working collaboratively – where the couple and their lawyers work together in face-to-face meetings. These meetings are not unlike mediation sessions except that the lawyers are there at their clients sides throughout. Unlike in the court negotiations where the lawyers may be working to outwit each other, collaborative lawyers use there combined knowledge to work together for the benefit of both clients.

Whichever process my clients choose, I (or my collaborative colleague and I) may recommend the involvement of an expert such as a financial planner – to help them gather up the financial information they need and help them look at what they might need in the future – or a family consultant – to help them cope with the roller-coaster of divorce emotions – in cases where the expertise is likely to help them achieve a better and quicker outcome. While involving experts may seem like an expense most people would wish to avoid, I explain that the expertise is likely to result in my involvement being reduced by more than a £ for £ basis.

So, court can and is avoided by clients who either approach mediators directly themselves or approach lawyers who understand the alternative advanced settlement techniques. Collaboration and mediation are often referred to as methods of alternative dispute resolution. I’d like to see court become the alternative and for the peaceful settlement processes to become the norm.

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8 comments

  1. Jonathan

    Dear MediationNotWar,

    Both this and your previous blogs are very interesting, and entertaining, a fascinating insight into your profession and the challenging subject of divorce. I can see many parallels with those guys who put out oil well fires, the most notable being Red Adair. Indeed, I just found a quote from him, which I think is apposite.

    “If you think it’s expensive to hire a professional to do the job, wait until you hire an amateur.”

    Now, down to business. Divorce is a multi dimensional thing, and in my experience you need all the help you can get. But more than that you need to know that you need that help. I’ve a feeling that I could write a lot here, but, for the moment will stay my hand. In brief, divorce as possibly the most stressful event that can happen in your life does not make for a rational basis for making decisions, or engaging in processes. Therefore, those who are supporting and advising need to bear this in mind, probably above all else. Why people think and act as they do at any one time is a complex business and can take the most skilled of individuals to understand and manage. Even if they are the most able advisors in the world, if a person is not ready to receive, then you need to exercise great skill and patience. In divorce, this must be difficult x 3, as you have your client, the other side and their lawyer to deal with. People always need a lot more care than is realised. They want to be understood, perhaps moreso in the case of divorce. Therefore, how do you design a process that takes account these and many other factors? How do you ensure that everyone is on the same, or a similar page?

    I would say that the whole thing is therefore the problem, both designing the process as well as dealing with the divorce itself. If no one is looking at the process then they are fools and are not serving their clients. I imagine that each and every divorce has a lot in common, and a lot that is different, and therefore lawyers and other advisors should approach it with a humility and willing to build from scratch, based on a sensitive understanding of all those involved. Although the analogy doesn’t go that far, it is like trying to build a team to achieve a difficult task, except, more often than not that team doesn’t want to work together.

    There is of course a lot more to be said. Experience and learning, unlearning and relearning can be hard for all. I would therefore encourage you not only to rightly look at the undouted merits of ADR, but also go deeper into the psychological, emotional and many other dimensions of your vocation. I’m sure that it will help many.

    Jonathan

  2. Stephen G Anderson

    Jonathan, thanks for your thoughtful contribution. Process building is something of a new idea for most family lawyers. In fact, I expect that few are yet aware of the term, even though they might already be doing it subconsciously.

    Your analogy about team building is perfect, but it shouldn’t be and that’s where my frustration lies as a family lawyer. Any lawyers involved should be the project managers; working together to create an approach which will address their clients, and any children’s, emotional needs first. Divorce can be said to be like a journey from one place to another, with each person on a separate set of parallel rail tracks. The couple won’t necessarily buy their tickets and start the journeys at the same time, but they need to reach the end point at the same time. While emotional needs are being managed, clients are likely to be more receptive to positive dispute resolution methods which tend to lead to quicker and better outcomes. The lawyers can meanwhile be looking at building a negotiating process which is likely to suit both parties.

    When lawyers don’t work together, however, these opportunities are lost and that is why so many divorces are more acrimonious than they need be, and don’t end with a feeling of mutual satisfaction with the outcome.

    As for psychology, I believe it ought to be a part of every family lawyer’s training, along with mediation. Until then, lawyers can recommend that coaches, psychologists, psychotherapist and counsellors be brought into the actual process – at the first joint meeting, for example – but this of course still requires the co-operative way of working which many lawyers struggle so hard with.

    • Diana Jordan

      Brilliantly put Stephen, what a refreshing read your blog is: I could have written some of that myself but my blog is still in the building…..watch this space. Meanwhile I’ve been listening to the inquest on the Archers (don’t ask!) and assume this is the only form of inquisitorial law we have in this country. I have long wondered why we can’t have this for family law and now realise that in fact we do have a precedent for it. How we can get the whole system redesigned from scratch rather than keep tinkering at the edges? Mediation is great and I am delighted that we now have so many wonderful collaborative lawyers whose whole approach to divorce is so discernably different. But it’s all done against the backdrop of the old gladiatorial adversarial system which can’t go soon enough as far as I’m concerned.

      Diana Jordan
      http://www.dealingwithdivorce.co.uk

      • Stephen G Anderson

        Diane, thank you for your comment (It originally was sent to my spam folder so apologies for the few days it’s taken me to approve it).

        Like me, you’ve probably not had time yet to read the family justice review interim report – http://www.justice.gov.uk/publications/family-justice-review.htm I’d like to think it will make some mention of not only that all family lawyers must also be taught mediation skills when they’re training, but also that there should be root & branch reform of the family legal system. I’ve had a quick look at your website. I really admire your peaceful approach to marketing divorce services. So many others could take a leaf out of your book.

  3. Robyn Arrington

    Dear Mediation not war,
    I recently became a Mediator, and the greatest contribution to families going through divorce is knowing that there are alternatives out there. Affordable and peaceful as you stated in your blog. Thank you for sharing. The job of spreading the awareness in the community is a priority, you have done a the world justice demonstrating there are
    options.

    I want to believe this world can benefit from such information. Put a end to couples in
    this difficult place to stop murdering eachother, stop sabotaging one another. To take
    all their options out, put them on a table and turn to professionals who specialize in restoring families through peaceful resolutions.

    Thank you,
    R. A.

    • Stephen G Anderson

      Robyn, thanks for your comment. It’s always good to get feed back, and it’s validating to have such positive comments from another mediator. Mediators tend to be quiet and unpushy advocates of their techniques. I tend to think it is something we should shout about!

  4. xanskinner

    Enjoyed your post! I repeat something similar every day, and it’s worth repeating, not just in the divorce context but in most situations people find themselves in court over. If two (or more) parties are committed to principles of fairness and are willing to engage in negotiations, why not keep matters within their own control, effectuate their own values, avoid damaging their relationships further, and reach an agreement that keeps their private affairs private, without all the overhead cost associated with a court action?

    • Stephen G Anderson

      Xan, when you put it like that it does seem to be anarguable, doesn’t it? While one can blame the system for: 1) only training lawyers in adversarial rather than co-operative skills; and 2) encouraging people in dispute to supress their hard-wired instinct to find a single problem solver and instead to encourage them to immediately take separate counsel, most professionals should by now be aware of the different options. We professionals within the family law business need to up our game.

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