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.