As a mediator, I am working with more and more separating couples who have come out of the court system, into mediation, because they have experienced first-hand what it feels like to be ‘processed’ by a court system!
Having spent over 20 years in court as a family solicitor,I know only too well the kind of feelings experienced by people going through the court system.
Many tell me that it feels ‘dehumanising’. Once they are in the court system they feel that it is no longer about them but about the solicitors, barristers and judges. The whole process feels incredibly alien and controlling.
My clients often describe feeling frustrated and very anxious, faced with the escalating costs and uncertainty of lawyer led negotiations and court proceedings.
Clients have described to me feeling ‘locked out’ of the decision-making process, as their solicitors and barristers appear to negotiate on their behalf’s, behind closed doors, coming up with solutions THEY feel are best for their client, that do not always reflect priorities and interests expressed by their clients but are rather shaped by legal principles and statutory factors.
My clients set out wanting justice but soon realise that the outcome they are likely to achieve in court does not necessarily reflect their version of justice. Some dig in, too proud to ‘give up’, fuelled by a desire to win that is unlikely ever to be realised or even the desire to punish their former partner, hoping to be able to tell the Judge how terrible they have behaved.
As the judicial system faces Treasury cuts, staff cuts, greater centralisation and increasing reliance on information technology to survive, submerging under the administrative weight of people forced to represent themselves because they cannot afford solicitors, more and more people feel obliged and, in some cases, compelled to look at alternatives such as mediation and arbitration.
Unlike the court system, mediation is about self-determination and focuses on motivating, empowering, enabling and supporting separating couples to navigate their differences, making decisions together, crafting out their own financial agreements and future child arrangements, at a fraction of the costs of other processes.
In my view, mediation should be the first port of call for most separating couples unless of course there are safeguarding issues and, should mediation fail, or, in other words, should the couple be unable to work together sufficiently well with their mediator, to create their own solutions, they always have the arbitration process to use in which they both pay an arbitrator to decide for them.
At the moment, many thousands of people each year are being allowed by court staff and Judges to bypass the requirement to attend a mediation information and assessment meeting where they will be told about their options and able to make informed decisions. Why this is happening is the subject of other articles but in the vast majority of these cases, this is not serving the clients’ best interests.
These are fast changing times indeed in which we need to keep at the forefront of our minds what our clients want and need from us and the dispute resolution systems we create and design for them.