One of the joys of running OnlyDads is working with Dads as they try to find solutions to their relationship with “the ex”. As readers of this blog will appreciate, finding solutions to contact with children issues can be counterproductive, especially when dragged through courtrooms.
The issues of litigation, public funding in times of austerity and mediation are very much en vogue at the moment. Most people are aware of the court process. For many it is the first port of call. It should be the last. The reality is that when the legal aid changes come into force next year the vast majority of separating couples will find themselves without access to public funding.
All of this had set me thinking about the alternatives.
(1) The first is one that is mostly overlooked in arguments about alternatives and yet, probably, the most common in everyday life. That is that people sort things out between themselves. Whilst a court will, ultimately, need to approve any financial settlement there is no requirement for a Judge to be involved in arrangements for children. Thousands of parents up and down the land make arrangements between themselves all the time.
(2) The present ‘hot topic’ is mediation. Mediation has been around for decades but is undergoing something of a renaissance at the moment as the government has decided that it can be funded instead of litigation. Therefore, those same people who cannot access funding to go to court will be able to access funding to attend mediation sessions. This emphasis is causing the mediation community some concern. One of the fundamental principles of mediation is that people enter into it voluntarily. Is it truly voluntary if people are doing it because they feel they have no option? If mediation is truly to become a realistic alternative to court then it will have to be because people see it as a genuine alternative, not just something that is there when there is nothing else.
(3) There is then something which strikes me as a half-way house between mediation and litigation: collaborative law. Both sides instruct collaborative lawyers. They agree at the outset that they will not go to court. They then set about resolving their differences with all four (both parties and both lawyers) around the table. The thinking behind this is that all issues that the parties want to discuss can be aired. Matters that the court would consider “not relevant” can be considered. This will lead to the parties feeling as if they have made progress. They both have the advantage of having their lawyers there to guide them towards a solution which is appropriate for their situation.
(4) And finally there is the lesser known scheme of “early neutral evaluation”. This mirrors the court process to some extent and is most commonly used once proceedings are underway (although it does not have to). In essence the parties jointly instruct an experienced barrister or solicitor to provide a view of what the likely outcome of the proceedings would be. The lawyers looks at all of the papers in the case so that a rounded view can be given. The parties then have a choice: accept that opinion and reach an agreement based upon it; or, don’t accept that opinion and continue with the court process.
There may well be other alternatives out there. I would be interested to hear of other options that people have tried and whether they found them useful. Who knows whether the brave new world of a changed funding landscape will create other avenues not yet considered.