Solicitors Mishcon de Reya recently published research highlighting the
detrimental effect of litigation on children following parental
separation. Sandra Davies announced the report’s findings in an article in
the Guardian. “The court system is becoming more and more
clogged with litigants fighting over emotional issues which the courts cannot
police,” she said.
The report – Parental Separation, Children and the Courts –
proposes compulsory attendance at “conflict clinics” as a pre-requisite
to litigation. The Guardian article goes on to note that many
people believe mediation, “which last year accounted for only £13.8m
of the £150m spent on divorce and separation,” does not represent an effective
alternative for dispute resolution since “it fails to work in the best interests
And it quotes Davies as saying: “Mediation is mandatory in order to get legal aid but
it’s much more of a box-ticking exercise.” “The better way is
to try to encourage parents to focus on their children in a less acrimonious,
litigious and confrontational atmosphere, to reduce pressures on the courts, and
avoid pressures on Cafcass [the Children and Family
Court Advisory Support Service].”
The article – and Ms. Davies comments in particular – drew a rather miffed response from Jane Robey, chief executive of National Family Mediation, who blames solicitors for
making mediation a “box-ticking exercise.” “Where that’s the case,” she
says, “it’s largely a result of the financial incentives for family lawyers to
keep the case going rather than find a mediated solution.”
She then berates Ms. Davies for saying the law should “encourage parents to
focus on their children in a less acrimonious litigious and confrontational
atmosphere.” “This is exactly what [mediators] do. How much longer can the
legal profession ignore family mediation?”
In her response to Ms. Davies, however, Ms. Robey fails to mention the collaborative legal process, which many
solicitors feel is a more effective way to resolve disputes.
Like mediation, the fundamental objectives of collaborative law are to resolve disputes without
going to court and to promote fair and conciliatory settlements. But, unlike mediation, the parties sign a binding contract not to
go to court, to put the children first (if they have any), to treat each other
with respect, to adopt a problem-solving stance, and to put the interests of the
family as a whole before their own individual interests. Moreover, each party
benefits from personalised legal advice during the collaborative legal process.
In mediation, if one party acts unreasonably the process
can ground to halt, since a family mediator who goes the extra mile to resolve a
dispute may be accused of bias. And because it’s non-binding the parties can
expend a great deal of energy reaching a preliminary (verbal) agreement only for
one to change their mind before putting pen to paper.
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