Minimising conflict between divorcing couples is something family lawyers are encouraged to promote to clients. Couples are often pushed towards mediation or round-table meetings rather than issuing Court proceedings. Does this trend mean that people are ignoring a forum which serves them better?
Court is time-consuming?
Many experienced family lawyers still believe that issuing proceedings can be the quickest route to a fair outcome. If couples are involved in more informal means of resolving their disputes, there is greater scope to cancel appointments if one party is unwilling or unable to cope with the issues that must be resolved. This can lead to matters being dragged out. One party may be slow to provide information needed for a meeting which means it ends up being ineffective. With a Court timetable in place, and the judge equipped with the powers necessary to ensure that there are consequences if one party decides not to "play ball", everyone knows when they need to provide information and attend hearings. These dates cannot be changed unless both parties agree or the Court believes there are good reasons to do so.
Once the Court has compelled both parties to provide information required for the case to proceed, the parties may then be in a position to negotiate an outcome via their solicitors or indeed directly. They can then submit a consent order to the Court, ending proceedings and wrapping matters up quickly.
Court is expensive?
Parties need to carefully consider their choice of legal team to ensure the costs are not prohibitive. In the long run, Court proceedings can be cheaper than a voluntary process if it means the matter is resolved sooner.
Doing a deal over the kitchen table may work well in many cases but this overlooks those cases where parties (intentionally or not) end up agreeing to an outcome which they did not fully understand or which did not take into account assets or income s/he might be entitled to.
Court will increase tensions?
Courtroom dramas have entrenched an image of the Court as an aggressive world of back-stabbing lawyers who stoke up acrimony. This, in reality, is extremely rare. Attending a Court hearing can be helpful for divorcing couples in the grips of a dispute. If one party is taking an unreasonable approach, this can be a good opportunity for them to be told formally that they need to change tack.
Court is intimidating and unpleasant?
People often imagine they will be ripped to shreds by a barrister shouting at them in front of a full public gallery. Divorcing couples only have to speak in Court if their case proceeds to a final hearing. Most family lawyers reach a negotiated outcome for clients at a much earlier stage and usually cases only proceed to a final hearing if they are particularly complex, of exceptionally high value or where one or both parties refuse to negotiate.
When couples engage in direct negotiations, one party may end up being more intimidated by their spouse then they would have been in a Court scenario. Even individuals who are good self-advocates may crumble in the face of a spouse who is a stronger negotiator or who may have been abusive.
Ultimately, every couple is different and divorces are complex and unique. There are obvious benefits to alternative forms of dispute resolution (particularly in relation to disputes about children) but these should not be held above Court proceedings. Parties should be provided with information about all options available to them so they can determine what the best process for them might be.
This article first appeared in Spear's Magazine on 5 March 2020.