Putting children first

This year’s Family Dispute Resolution Week is fast approaching. Its purpose is to encourage family practitioners and separating couples to consider using out-of-court dispute resolution options as a way of resolving disputes. 

This article illustrates why the week is necessary and considers two of the out-of-court options apart from the traditional family mediation route. 

Resolution has 6,500 members who are family lawyers and other professionals, who are committed to the constructive resolution of family disputes. Resolution is planning its fourth Family Dispute Resolution Week (FDRW) which runs from 23 to 27 November 2015. 

The theme for 2015 is ‘putting children first’. Resolution has commissioned polling of children and young people about their experience of parental breakup, drawing on the Resolution parenting charter to discover whether children ?feel they have been given appropriate information, explanation, and the chance to be involved in decision making during their parents’ divorce. 

Resolution has found that, in interviews, young people gave a powerful illustration of the need ?for the parenting charter and Resolution’s code ?of practice, as well as further efforts to involve children in what happens if parents decide to separate or divorce. 

In my family mediation practice I mediate with children and young people, and I believe that they value it when parents consent to them being part of the separation process so their views can ?be heard. 

For example, I was contacted by a non-UK resident father. He left the relationship with the mother without discussing the separation with ?his three teenage children. He wanted to have ?an opportunity to do this as he could sense the children were upset that no explanation was given as to why he left. The father also wanted to talk about how he and they could spend more time together. I met the father for his intake session and my co-mediation colleague met the three children. 

After a short break we had a joint session together. The father wanted to let the children know that he would still be actively involved in their lives even though he was not living with the mother. The father was in the UK for a few months and wanted to discuss with the children when he could spend time with them then and in the future. 

Having been a volunteer in child contact centres, and worked with children and their separating parents, I have seen how the child would say different things to each parent to keep them ?both happy. A one-to-one session between the mediator and the child creates a safe space where children do not feel threatened and can express themselves without feeling judged by their parents. The mediator can then give feedback to the parents as to the child’s wishes and feelings ?regarding the separation.  

There are different models for arranging direct consultation with children. Difficulties can arise if there are big gaps in between the session where the mediator meets the child and the session where they meet the parents for their feedback sessions. I therefore arrange it so the sessions with the child and the parents take place on the same day, so the child is not left in a state of anxiety. ?

Planning for FDRW

Here are some ideas of how to get involved in Family Dispute Resolution week: 

• Offer free coffee and information sessions about non-court options for families. One of these is being organised by Annmarie Carvalho from Farrer & Co; or 

• Do a presentation to your local family justice board with a view to encouraging them to make out-of-court referrals. The Essex Family Solutions pod is planning one of these in November. The theme is inter-disciplinary alternative dispute resolution (ADR). The group has planned a case scenario involving a direct child consultant, a solicitor, and a financial adviser, each commenting in a neutral capacity. There will also be a short presentation on how a collaborative lawyer might deal with this situation. 

?Out-of-court options?

The ‘collaborative’ process lets clients work through matters that need resolving. Each client has a trained collaborative lawyer present at each meeting. The number of sessions will depend on how many points each client wants to resolve. 

In each session the clients and their solicitors ?will meet to work out the details for the separation. The solicitors provide support and legal advice ?to the clients. It could also work as an inter-disciplinary model with family consultants or financial advisers being part of the sessions. 

Clients can decide what they would like to achieve in each session. 

At the start of the collaborative process each party signs an agreement to resolve the financial and children issues arising out of the separation. ?If the process breaks down, the clients need to instruct new solicitors, which means everyone is focused on finding the best options together by agreement. 

At a recent Pod Liaison Officers day, it was explained that one of the benefits in the collaborative process is that sessions can take place at a date that is convenient for the clients and as frequently as they like. This was contrasted with a recent case where the court was informed of dates to avoid for listing a hearing. By mistake, the court listed the hearing on one of those dates. 

The court was slow to notify the date of the hearing, which could have resulted in big cost implications for the clients by having to rearrange the hearing date. In that case there was a sympathetic counsel who did not charge their brief fee as one of the clients could not attend due to being out of the country. If a collaborative process had been used, the meeting could have been set more quickly than a court hearing. If a meeting date needed to be changed at short notice, it would have been much easier to rearrange. 

Becoming a collaborative lawyer requires training and then membership of a ‘pod’ group. ?

Arbitration

I work with clients who come to meet for financial matters in mediation. If the financial mediation breaks down, clients will be aware of arbitration from the initial mediation information assessment meeting (MIAM) and may therefore decide to use it rather than going to court. 

It is a cheaper process than going through potentially three court hearings. When financial arbitration was launched a few years ago as a pilot, some trained arbitrators were offering to arbitrate financial matters for £1,500, which is a fraction of the cost three financial court hearings would be. 

Positive endorsement was given to convert ?an arbitrator’s award into a court order in the ?family arbitration case of S v S [2014] EWHC 7. An application had been transferred up to the Family Division by Munby J from the Guildford County Court. After approving the order, guidance on ?how to deal with such applications was explained. 

This case concerned a 16-year marriage. By the time of the judgment the child was 18 years old. Assets of the marriage were under £2m. 

The arbitration took just two months. ?Only one meeting was required where everyone was present and the rest of the details for the arbitration were resolved by conference call. ?Costs were a lot less than going to court. ?This process also helped the couple to talk, which was important as they had a child together and will need to continue to communicate with each other in the future. 

At the moment arbitration can only be for financial matters. However, training for children arbitration matters is expected to be launched ?in 2016.  

Readers who want to know more about the family mediation and arbitration model might ?be interested in the SJ Live event on 3 February 2016 in central London, at which solicitor and arbitrator Charmaine Hast from Wedlake Bell ?and I will be speaking.

Austin Chessell is a professional practice consultant and child and family mediator at Family Mediation In Action. He is a collaborative family solicitor at Feltons Solictors and a member of the collaborative pod group at Essex Family Solutions @FamilyLawLondon  www.essexfamilysolutions.org

---