ACCESS TO JUSTICE

Access to justice is fundamental to any civilised society. Recently however we had the absurd situation where the Law Society had to take the Community Legal Service to Court for a review of its tendering process for legal aid in circumstances where and by severely cutting the number of law firms that could offer a legal aid service, access to legal advice and representatives was crudely reduced. Although the Law Society won that round, we now hear rumours that legal aid will potentially no longer be available for many family cases and only on Thursday the Justice Minister, Jonathan Djangoly, indicated on the radio that people in family breakdowns are using court too often and that the Government is determined to look at this, with mediation being viewed as a positive alternative.

Of course lawyers came in for criticism, being blamed as lacking knowledge of the mediation process. Well I have news for Mr Djangoly, many lawyers, myself included, have trained as mediators and collaborative lawyers and invariably promote these methods as alternatives to traditional negotiation techniques or litigation. In my experience and for good reason not every client wants to go down those routes and without a commitment to the process neither mediation nor collaboration will succeed. However, just because those options are repudiated, doesn’t mean that everyone wants to go to court. In fact I would struggle to think of any client for whom the issue of court proceedings has been anything other than a last resort. Experienced family lawyers will always endeavour to encourage clients to settle disputes by whatever method is the most appropriate for their circumstances and, more than anyone, are fully aware of the cost and trauma that court proceedings can inflict.

COLLABORATIVE LAUNCH

Image by courtesy of Durham Cathedral.

To launch collaborative law in County Durham and Wearside, family lawyers from across the county, hosted an event in the Prior’s Hall at Durham Cathedral last Tuesday for all professionals involved in family issues.

Collaborative law is an innovative approach to help reduce the emotional cost on couples and their children when families in the area split up. Instead of negotiating by letter or litigating in court, the alternative method, called collaborative law, involves couples working with their solicitors, all together in the same room, to reach agreement without the need for costly and stressful court battles. Both parties and their lawyers pledge to work together to negotiate an agreement without going to court.

Where it has been practised elsewhere in the UK, it has achieved remarkable results. We are confident it will in County Durham and Wearside too.

More information on collaborative family law is available from www.resolution.org.uk and www.collabfamilylawnortheast.co.uk

A BETTER WAY TO DIVORCE

In September I completed training in collaborative practice. Six solicitors in Tees Valley, along with many others across the North East region and the country nationally, are now offering a new way to divorce. It’s a revolutionary approach which helps reduce the emotional cost on couples and their children when families split. Instead of dealing through solicitors, the new approach, called collaborative law, involves couples working with their solicitors, all together in the same room, to reach agreement without the need for costly and stressful court battles.

In 2007, 128,000 marriages in the United Kingdom ended in divorce. Sadly, family breakdown is a fact of life. Unfortunately, the consequences are often devastating for spouses and their children and can lead to personal trauma and turmoil. Members of Resolution, a 5700-strong group of family lawyers, commit to minimising the financial and emotional pain it causes. We do this by adopting a conciliatory approach which puts the needs of any children involved first. Collaborative law is a natural extension of this idea. By all sitting together, we ensure that couples stay in control of their own futures, instead of leaving decisions to a judge in a courtroom. The focus is on solutions rather than confrontation. Where it has been practised elsewhere in the UK, it has achieved remarkable results. I’m confident that it’s going to do the same in the Tees Valley area too

Both parties and their lawyers pledge to work together to negotiate an agreement without going to court. If an agreement cannot be reached, and court is seen as the only solution, the lawyers involved cannot act for either party in the subsequent court case. This means that everyone involved (including the lawyers!) has an incentive to settle the case.

More details are given on the Resolution website and also on You Tube by Mogers Solicitors and on Richard Sharp’s Blog that has been titled Family Law Collaborative Blog.

OF RELEVANCE TO MERE MORTALS

In anticipation of the final judgment in the McCartney v Mills divorce on Monday 17 March, Resolution issued a press release today pointing out that although the sums of money involved in this case are far removed from the experience of most separating couples, it does raise a number of issues relevant to more ‘normal’ divorces.

Firstly, a high-conflict court battle is not the inevitable end to marriage breakdown, even when there is a lot of money on the table. The traditional approach to divorce involves two solicitors who rarely meet and who focus on representing one side of the split in and out of court. In contrast, mediation and collaborative law offer couples an alternative. With everyone sitting round the negotiating table at the same time, conflict can be reduced and couples are encouraged to reach agreements together, rather than having a decision ‘imposed’ on them by a judge. Collaborative lawyers work with each other during structured meetings with both the husband and wife to reach agreements that suit all the family – especially children. In this way, collaborative agreements are much more flexible than the court process, as couples are not obliged to follow the letter of the law and can instead agree to something different that works for them.

Secondly the need for pre-nups that stick. When courts decide how to divide up the marital pot, current legislation creates a great deal of uncertainty around who will get what. It’s this uncertainty that leads people to rely on expensive court battles and the interpretation of the law by individual judges. With second marriages on the increase, more and more people want the security of a pre-nuptial agreement to end this uncertainty. Resolution lawyers argue that the law is out of step with the demands of the modern family - a divorcee with children may be put off marrying a new partner preciously because the current law doesn’t protect money and property acquired before the relationship. Resolution is calling for legal changes to make pre-marital agreements binding, allowing people to take control of their own financial future rather than relying on the current lottery of divorce court hearings.

Thirdly that when assets acquired individually by a husband and/or wife are brought into a marriage this can be taken into account when finances are divided as a result of divorce, especially if the assets are considerable or if one party has made what the law terms an ‘exceptional contribution’ to the marriage. The usual position, however, is that a marriage is considered to be a partnership of equals, assets acquired during the marriage fall to be divided equally and unequal contributions are only relevant where it would produce an unfair result not to consider them differently.

Fourthly that the length of the marriage is of relevance. Sir Paul McCartney and Heather Mills were married for a relatively short time. The effect of the shortness of the marriage may be something mentioned in the judgment. Shortness of marriage can be important but only as one of the factors to be taken into account.

Finally, financial proceedings in family law cases are normally conducted in private. This encourages the parties involved to negotiate with each other, even when there is extensive media interest. Usually judgements are not made public. The judge in the McCartney v Mills case has indicated that he intends to make part of the settlement public due to the level of media interest in the case.

D DAY

7 January is widely regarded as the day on which most couples file for divorce. Evidence suggests that for many families, far from being a relaxing break, the Christmas holiday is a time of huge stress. Instead of fixing troubled relationships, it can be the final straw.

Add to this the financial strain early January brings, the reality of returning to work, no let up on the cold weather and relationships can come under intolerable pressure.

Acrimonious breakdowns can have a devastating effect on families, especially on children, and should be avoided at all costs.

An estimated one in three marriages ends in divorce - a painful and often long-winded process with significant emotional and financial costs. Collaborative family law is a relatively new process that aims to reduce conflict. It offers an alternative to the traditional divorce process in which couples agree not to go to court and instead work out solutions together.

More and more people are taking the collaborative approach and identify three key benefits; it’s a private process, it’s less contentious than going to court - and therefore less anxiety ridden - and the outcome is often fairer for both parties because they have reached it together.

What’s more, it sends out remarkably positive signals to children who benefit hugely from knowing that their parents are working out their differences together.

Resolution lawyers and mediators can help separating parents to reach agreements without the need for costly court battles.