Is it possible to divorce together?

As children, when arguing with a sibling, we have a hard-wired instinct to find one of our parents to resolve the dispute. Yet, when we fall out with our partners, we’re not encouraged to follow this innate mechanism. Instead we seek our own champion in the hope that they will sort it out. The trouble with this is, when each has a champion, the champions’ views rarely correspond exactly.

Solicitors are trained to listen to their client’s side of the story and then suggest a solution. The solicitor, not their clients, are the owners of the solution and if it isn’t one the other party accepts, what tends to happen is that each solicitor struggles to impose their solution on the other. Any negotiations, such as they are, may consist of little more than a requirement for deep pockets, a need for emotional fortitude, and the willingness to take part in a slo-mo dutch auction – a high price that’s gradually lowered until someone accepts it. The negotiations are often hostile and can cause irreparable damage to a couples’ capacity to successfully co-parent into the future. Ask anyone who has gone through the wringer in this sort of process and few will say they felt the actual outcome was good for them or their families.

Mediators are trained to listen to both sides of the story, and then to provide an arena which allows each to express to the other what they think a reasonable outcome should be. Mediators can’t advise, but will use skills and techniques which encourages interest based negotiations which allow the couple to focus on first acknowledging what each needs. The discussions are more likely to be civil, brisk and provide an opportunity to couples to develop a new type of relationship – ideal for learning how to co-parent.

For these reasons, mediators are unarguably an entirely appropriate professional for couples to go and see as and when their relationships break down. The trouble is, it’s rarely the case that each party to the relationship reaches a decision that their marriage is over at the same time. Often one decides well before the other, which makes a simultaneous visit to a mediator unlikely. This may explain why more mediators are not seeing people in broken marriages at the earliest stage.

If only there was an alternative way which would enable more people to either follow their instinct of childhood or at least find a way of achieving better outcomes Well, there is. In fact there are many ways – some quite radical – and I’ll be exploring them in coming blogs, the first of which will take a look at a process which has been with us in England now for 8 years. Collaborative law.

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6/4/11 – A new dawn for family law?

From Wednesday 6 April 2011, nearly everyone who wants to make an application to the court for a financial order linked to a divorce, will need to attend, beforehand, an information & assessment meeting with a mediator. The same requirement will also apply to applications for most parenting matters – such as where a child ought to live, or how much time a child ought to spend with each parent. The mediator will assess whether the case might be suitable for mediation (or some other dispute resolution process such as collaborative law) and, if it is, provide information about who provides the service. The rule is likely to result in more couples choosing to mediate or discuss their difference around a table, with fewer cases decided by a judge. What nobody can predict, though, is how big the impact will be.

My guess is that the effect will be significant. I have been part of a small team of family mediators who, since February 2010, has been offering mediation to parents who have made applications. Our experience has been validating. Of the cases which are appropriate for mediation (where there is no serious domestic abuse or where social services might already be involved) around 80% are resolved with a mediator’s help. These are cases that are not just lodged by self-representers, but by those who are represented by solicitors as well.

Around 90% of Ipswich’s experienced family solicitors are either trained as collaborative practitioners or are mediators. As a rule I think it’s fair to say that we do not encourage our clients to rush off to court at the first opportunity. Yet, despite this, it’s clear from the results of the in-court mediation service that many cases which are appropriate for mediation are not being successfully referred to mediators. The new rule coming in on April 6, should help to direct these towards mediation, and other more appropriate dispute resolution processes, such as collaborative practice and round-tabling, and so save more couples from the grueling, lengthy, expensive and ultimately unsatisfactory (for most cases) court process.

There have been howls of protest about this from all sorts of corners. You won’t hear many complaints from those family solicitors who already refer their clients to mediators, or who mainly use other techniques to help their clients achieve better outcomes. Some solicitors are worried about how quickly their clients might find a mediator who is able to see them promptly (in circumstances where they know a judge will need to be involved). The most vociferous opponents seem to be those solicitors whose cases tend to end up in court more often than their colleagues’ cases seem to.

The way I approach all my cases as a solicitor is to simply listen to what my clients want. Some want mediation, some want collaboration, and some want something that’s not exactly either but a hybrid. I’ll recommend that they work with financial coaches, family consultants or any other professionals if I believe it is more likely to achieve a better outcome for them and their family. Unsurprisingly, given the adversarial nature and cost of court proceedings, none of them choose court.

I know because of the many I’ve met when training, and through the incredible exchanges I’ve shared on LinkedIn and Twitter, that there are many other solicitors and solicitor-mediators here and abroad who share my optimism that more husbands and wives, more couples, more civil partners and more families can find solutions for themselves, rather than have something imposed by a judge. There will always be a need for judges – to protect those who need protection, and to settle disagreements about the interpretation of laws – but these are a minority of cases.

The new rule can’t do this on its own, of course it can’t. But it does represent the beginning of the end of the largely archaic way family disputes are so casually dealt with by the family law system. So much so that I can already see the day when court will eventually be the alternative.

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.

Mediation is not a panacea – says who?

There are many things that anger me, and few have got anything to do with my advancing years. As a young man during the 80s, my sense of fighting injustice seemingly had no better opportunity to flourish than as a “gun-slinging” trade union activist. With my band of brothers and sisters, I unsuccessfully fought a tidal wave of Thatcherite economic change that has left us as a nation: without any significant manufacturing base; totally reliant on the financial services industry – that have put us and our children into hock and yet continue to draw bonuses as if it never happened; and with much of our media owned by one of Thatcher’s acolytes. Ah, her supporters say, but at least we’re not in hock to the trade unions. Well no, but surely nobody still believes it is any better to be reliant on an industry which is so powerful, despite the fact it nearly bankrupted us (and we’re paying heavily for the greed) it can continue to richly reward itself as if the banking crisis never happened?

And then I became a solicitor, and a family solicitor to boot. Trained in the arts of the adversarial court system – which is not unlike a union/management confrontation where the winner is the one with the strongest will – somehow I was supposed to have learned the necessary skills to help people get through a divorce. But I hadn’t realised that the way lawyers are trained, and the legal system itself, are counterintuitive as far as relationship breakdowns are concerned. So for years I did what I’d been trained to do – send vile letters to my clients’ solicitors in the belief that the strength of my inflammatory comments were equal to the merits of my clients’ cases. But all that happened was a great deal of acrimony and expense before my clients or their partners gave up the fight, either through lack of funds or lack of will. If it was my client who gave up, I’d tell them that they’d properly “compromised” and had not been bullied into submission. If it was their partner who gave up, I’d tell my client that they’d won.

It was only after 2005 when I trained in collaborative practice, and later as a mediator, that I learned the art of helping clients achieve true compromises; settlements based on mutuality of interests rather than power and money. I learned how we are hard-wired as children to seek out one parent to sort our squabbles out and that we don’t naturally chose separate problem solvers. This is why mediation is such a poweful process. Helping clients achieve their own solutions rather than imposing my idea of fairness has profoundly changed the way I work and my clients’ outcomes.

So what’s any of this got to do with mediation not being a panacea. Well, it’s like this. I frequently read comments by lawyers which go something like, “mediation has it’s place but it’s not a panacea some people claim it to be” or “mediation is not for everyone”. Now I agree with both of these statements, but only in a qualified way. To begin with, I’m not sure I’ve ever read of anyone claiming that mediation is a panacea, so I don’t understand why the sentiment needs to be challenged. And mediation isn’t for everyone, true. But most non-mediators reading that will think “I told you so, mediation is only suitable for a few cases” and so are able to justify to themselves their poor client-to-mediation referral record. These sorts of comments do nothing to challenge family lawyers’ approach to their work.

Since training collaboratively 6 years ago, I have been to court only twice: once for an interim hearing in a case which started before my training and once last year for a preliminary hearing in a case which subsequently settled before the next stage of the court process. Apart from that, all my clients cases have been resolved using mediation, collaboration, constructive solicitors’ correspondence or some other form of ADR process. Only once has my client needed to instigate the court process ( where his wife had refused to engage in any process for over 12 months), but even in that case we were able to suspend the court timetable in order to meet and agree round a table. Apart from these examples, none of my clients have had the court process launched against them.

That is not to say that there isn’t a place for the court. Where a person or property is at real risk of harm or dissipation then the court’s emergency powers will protect in a way the ADR process cannot. And sometimes, there may be real issues of law which only a judge can resolve. But by and large, courts should not be needed for typical divorce related matters and it’s us lawyers who need to understand this and change the way we work.

So, mediation may not be a panacea, but mediation, collaboration and other methods of appropriate dispute resolution most certainly are and if anyone disagrees with me, they’ll need to explain how it is that my clients are special.