A better future: Best practice in child disputes

'While the law provides a mechanism for the resolution of disputes between parents in respect of their children,
it is but a blunt instrument when compared to the nuanced virtues of calm discussion and considered compromise between those involved, accepting that this latter path can be a hard one on which
to embark, and to sustain, in the context of relationship breakdown.'

These wise words come from the Honourable
Mr Justice MacDonald, who presided over Ciccone v Ritchie [2016] EWHC 608 (Fam), and are an attempt
to persuade separated parents to avoid litigation where children are involved. They are a mantra of common sense.

MacDonald J's comments are also supported by the rigorous work and research carried out by one
of the UK's most respected therapeutic agencies,
the Tavistock Centre for Child Relationships (TCCR). This agency, working with Cafcass and funded by
the Department for Work and Pensions, engaged
100 separated couples in therapeutic work over an eighteen-month period in 2014/15. 

The target group of parents involved in the study had been involved in entrenched litigation over a period of years. Using tried and tested measurements, the centre demonstrated that
the provision of therapeutic treatment to these test-subject parents improved their ability to co-parent, improved their understanding of the other parent's position, and increased the quality
of their children's lives commensurately with
their increased perception of better parenting.
The combined approach of therapy and parental education programmes resulted in parents reporting less expressed anger towards their ex-partner, feeling less stressed, reduced levels of depression, and improvements in their children's emotional and behavioural difficulties.

The implications and lessons of this significant report are clear: therapeutic intervention is a more valuable resource for parents trying to find the best way to resolve disputes about the care of their children than going to court for a solution. It is more sensible to spend money on therapy and parental education than on a court process. It is, hopefully, only a matter of time before the kind
of therapeutic intervention used by the TCCR is funded to facilitate a wider rollout to the public.

But, at a time of austerity, we may be forgiven for being sceptical that sufficient public funds will be made available for this wholly worthwhile purpose. So, in the meantime, lawyers will continue their efforts to help clients to find a better way than sterile court disputes.

Family court reforms

In April 2014, the president of the Family
Division, Sir James Munby, implemented a number of reforms, including the encouragement of non-court dispute resolution to settle matters at every stage of the court process. So, what methods of non-court dispute resolution are available and, more importantly, how effective are they proving to be and what more can be done to keep separating couples away from the courts?

Mediation

Increasingly, judges are adjourning cases (especially children cases) with a direction that the parties attend mediation. If clients wish to issue court proceedings, unless they fall within one of the exceptions where mediation would be unsuitable (for example, domestic violence),
they are first required by rules of court to attend a mediation information and assessment meeting.

The proven advantages of mediation are threefold:

• Discussions are confidential and cannot be disclosed outside of the mediation or at a court hearing; by contrast, family court judgments can be published, and members
  of the press can attend some court hearings. Mediation avoids the prospect of the finer details of a client's personal and private life being tomorrow's news;

• It can save time and money. In the majority
  of cases, a resolution can be found far quicker than it would be during the court process, with the resulting impact on costs; andThe client is in control and can have as few or as many sessions as they like. Mediators will encourage parties to agree on what works best for them and their family, even if that solution is not one that a court would impose.

Although the statistics should be used as a rough guide only, family law organisation Resolution recently indicated that the number of mediation cases has almost doubled from 5,452
in 2011 to 9,477 in 2014. A more comprehensive survey of recent data will be conducted by Resolution this summer, but it is expected that
the numbers of mediations will continue to grow.

Although the statistics are promising, they remain relatively low when compared to the
fact that the number of new cases started in the family courts is on the rise, with 62,456 new cases between October and December 2015 (a 6 per cent increase year-on-year).

The sceptical among us may say that it is not in a lawyer's interest to promote mediation. Larger fees can be charged for guiding clients step-by-step through the court process, rather than advising around the edges of mediation. In addition, the unfortunate reality is that there
are always lawyers who behave in ways which polarise disputes, rather than minimise conflict. No area of law is immune from that cancer.

Consideration also needs to be given to the timing of mediation and the power dynamic between divorcing spouses. Often, when clients meet their lawyer for the first time during a divorce or children dispute, the time for reasoned and sensible discussions with the former partner is sadly over. There may be a breakdown in trust,
a breakdown in communication, or something much more personal, such as a loss of confidence in themselves and their ability to navigate the relationship. Their lawyer is their security - a barrier between them and their former partner.

In addition, if a client perceives their former partner as controlling, they may fear that mediation could be used to bully them into agreeing a settlement that is unfair.

Arbitration

Arbitration in family law was formally launched
on 22 February 2012 and is another out-of-court technique for resolving disputes whereby parties appoint an arbitrator of their choice and agree to be bound by the arbitrator's decision. From July 2016 onwards, under the children arbitration scheme, arbitration will also be available as a method of resolving disputes concerning the exercise of parental responsibility and other private law issues in relation to the welfare of children.

Arbitration is relatively new in matrimonial cases, but has much to commend it:

• There will be a resolution: Unlike in mediation or collaborative law (explained in further detail below), once clients agree to arbitration and sign the relevant paperwork, they are committed and the arbitrator will make a binding decision;

• Speed and cost: The process can be dealt with more quickly and as a result is often less costly than if a client were to go to court; however, the arbitrator's fee must also be paid, whereas there is no judge's fee in court;

• Privacy: Matters will be discussed in private and the final decision will be completely confidential; and

• Flexibility and choice: clients agree who the arbitrator will be, rather than taking pot luck in court where they are obliged to accept the judge allocated to their case. Clients can also agree the procedure and work to a timetable that suits them.

There is little statistical data analysing how arbitration and collaborative law have been received, but Resolution recently indicated that
it has processed 102 ARB1 forms.

Arbitration has the definite draw of a binding decision, flexibility, and cost and time benefits, as referred to above. Some leading arbitrators' costs are of course expensive, but arbitration shouldn't be seen as a luxury for high-net-worth individuals; arbitrators' costs do vary significantly.

The concern is that we are creating a two-tier family justice system: those who can afford to
pay for quick, bespoke arbitration on the one hand, and those who are trapped in the court process with the associated pressures and delays on the other.

But arbitration is a viable option for low-income families - the problem is, again, one of education and public perception, as not enough of the public realises that arbitration is available
and affordable.

Collaborative law

For this initiative, we should be grateful to lawyers in Minnesota, who were the method's pioneers in 1991. As part of the collaborative process, clients and their advisers sign a 'participation agreement', which disqualifies them from representing their clients in court if the process breaks down. The idea is to demonstrate a commitment by all
those involved to resolve the issues without
going to court.

The parties meet together to work things
out face to face. They discuss the issues frankly with the support of their lawyers by their side throughout the process. Negotiations are completely open and transparent.

The advantages of the collaborative process
are very similar to mediation and arbitration. Clients control the process, it avoids the costs of litigation, discussions are confidential, and clients are free to agree on what works best for them as
a family, as opposed to the limited orders that a court can make. However, what sets collaborative law apart from other forms of dispute resolution
is that all those involved, including the lawyers, are focused on achieving settlement without
the shadow of court proceedings if things become difficult.

Solicitors do not have to formally sign up to
the collaborative process to work collaboratively. Parties are, of course, free to negotiate matters via their solicitors without going to court. There is greater flexibility in the voluntary process; tensions between the parties can be
kept to a minimum, as can costs. Settlement is often reached during round table meetings between solicitors and private financial dispute resolution hearings.

The downside to the voluntary process
is that parties can find themselves months
into negotiations without being any nearer settlement, large costs have been incurred,
and the only way to reach an overall resolution
is to issue proceedings - which the parties
sought to avoid in the first place.

Statistics from Resolution also indicate that
the number of collaborative cases reported by their members have remained at around the 1,800 mark for 2014 and 2015. However, these figures have fallen by approximately 30 per cent from 2011, when there were 2,565 reported collaborative cases. So, despite the amicable approach encouraged in both arbitration and collaborative law, why are people often still turning to court to resolve their disputes?

Collaborative law is proving hard to promote. While it is true that clients control the process, parties are put off by what they perceive as the time and cost commitment. In high-conflict cases, clients feel they need a lawyer who is absolutely 'in their corner', rather than one who is committed to a consensual approach.

With low-conflict cases, parties are more likely to use the more cost-effective forms of dispute resolution, such as mediation, to settle matters. Most crucially, for many, the threat of having to start afresh with new legal advisers if they fail
to reach an agreement acts as a disincentive to embarking on such a scheme.

Best chances of success

It is not in dispute that there are effective and constructive ways of resolving disputes without going to court. But to our minds, non-court options, in particular mediation, stand the best chances of success when a couple is willing to
talk meaningfully to each other and there is not
a power imbalance in the relationship. Proper screening processes must always be put in place to ensure that clients are suitable and ready to explore the non-court options available.

There also needs to be investment in educating the public, who should be better informed on the forms of non-court dispute resolution available. In a recent survey of over 4,000 British adults commissioned by Resolution, only 39 per cent
of separated adults actually knew what family mediation was.

Change also needs to be judge-led. In Mann v Mann [2014] EWHC 537 Mr Justice Mostyn
used the court's general powers under Family Procedure Rule 3.4(1)(b) to adjourn financial proceedings for a specified period to enable non-court dispute resolution to take place. He noted that, while 'parties could not be compelled to engage in the mediation… the court could robustly encourage engagement by means of
an order in terms that failure to justify a decision not to engage in mediation could result in costs sanctions'. If a party's unreasonable failure to explore alternative methods of dispute resolution could lead to costs implications (as is the case in the civil law sphere), this would surely be a strong incentive to all parties, lawyers and clients alike, to take non-court options more seriously.

Ultimately, there is therefore a responsibility
on family lawyers to encourage clients where appropriate to try to reach agreement outside of the court process. In the vast majority of cases, this will be in the best interests of the client and the family as a whole. Let the words of Macdonald J be a poignant encouragement of the solution away from the court room:

'Within this context I renew, one final time,
my plea for the parents to seek and to find an amicable resolution to the dispute between them. Because agreement is not possible today does not mean that agreement will not be possible tomorrow. Most importantly, as I observed during the course of the hearing, summer does not last forever. The boy very quickly becomes the man. It would be a very
great tragedy for Rocco if any more of the precious and fast-receding days of his childhood were to be taken up by this dispute. Far better for each of his parents to spend that time enjoying,
in turn, the company of the mature, articulate, and reflective young man who is their son and who is a very great credit to them both.'

Simon Bruce is a partner and Elizabeth Burch and Rebecca Heyworth are associates at Farrer & Co