Every year Resolution, the association of family lawyers, runs a ‘Good Divorce Week’ campaign, with this year’s campaign running from the 28 November to the 2 December.
The objective of the campaign is to encourage those going through divorce to make the process as painless as possible, with this year’s campaign highlighting the crisis in the family courts, and raising awareness of all the different ways families can resolve their disputes away from court, where it is safe and appropriate to do so.
Overstretched family courts
Whether it can be described as a ‘crisis’, there can be little doubt that the family courts are overstretched, with the result that cases are taking much longer to deal with.
HM Courts and Tribunals Service, which is responsible for the administration of the Courts in England and Wales, has recently published statistics showing that there is a backlog of more than 110,000 cases for the family courts, and that cases are taking, on average, almost a year to complete.
More specifically, the latest Ministry of Justice (‘MoJ’) statistics for the Family Court, for the quarter April to June 2022, show that cases involving disputes between parents over arrangements for their children are taking on average 46 weeks to reach a final order, the highest level since the statistics were first published in 2011.
The upward trend in time estimates of these cases began in 2016 when the number of new cases overtook the number that were resolved by the Courts. This situation was obviously then exacerbated by the pandemic, which severely limited the number of cases that the courts could deal with.
In relation to financial remedy applications, the MoJ statistics show that the number of cases that the court was able to dispose of was down 26% on the same quarter in 2021.
Obviously, anyone contemplating making an application to the Family Court must expect their case to take a considerable time to resolve, meaning that parties will be involved in stressful (and often expensive) litigation for longer time periods.
But going to court is not just about the time it takes for the case to be dealt with. Family court proceedings are an adversarial process, pitching one party against the other in an often stressful and damaging conflict.
There is, however, a better way.
Constructive approach
It sounds like a contradiction in terms: surely, a divorce can never in any sense be described as ‘good’?
But Good Divorce Week is not so much about the act of divorce. Rather, it is about the process. Clearly divorce, at least in most cases, cannot be characterised as a good thing, but there is no reason why the process must be fraught with animosity and pain.
And here the approach taken to the process is critical.
All Resolution members are committed to a Code of Practice that promotes a constructive approach to family issues, and considers the needs of the whole family, in particular the best interests of children. This includes reducing or managing any conflict and confrontation – for example, by not using inflammatory language, and supporting and encouraging families to put the best interests of any children first.
Avoiding court
So how can disputes be resolved away from court?
The obvious answer is of course by agreement between the parties. This can be where the Resolution approach can be so helpful, minimising conflict and maximising the chances of successful negotiation.
And if negotiation is not successful then there are other ways to avoid court, for example mediation and arbitration.
Mediation is a process whereby the parties agree to refer their case to a trained mediator, who will help and encourage them to reach an agreed settlement. The parties can seek advice from their own lawyers throughout the process, and in some cases the lawyers can take part in the process – this is known as ‘hybrid mediation’.
Arbitration is a different process, whereby the parties agree to have their case decided by a trained arbitrator (a highly experienced lawyer or even a retired judge), and to be bound by the arbitrator’s decision. Arbitration can be much quicker and cheaper than contested court proceedings. Again, the parties can retain their own lawyers to advise them throughout the process.
There are of course times when going to court cannot be avoided, but the message of Good Divorce Week is clear: divorcing couples should make every reasonable effort to resolve their dispute away from court, where possible.