Some interesting survey results have been published today which indicate that the majority of people getting divorced still want to go to court.
I am somewhat surprised by this figure, so thought I’d consider why this may be the case, and then offer some reasons why mediation or avoiding the courts might be a better option.
Why would people think going to court for divorce is best ?
Some of the possible reasons may include :-
- Believing that having a court judgment or order is important – to an extent, correct. If you are going to spend money on trying to secure the best resolution for you, you want something to back it up. However, clients often confuse civil law with criminal law. With any kind of judgment or order in a civil court, compliance is not guaranteed, although with divorce cases, there are some aspects which can be forced through if a party doesn’t comply, such as a pensions sharing order or property transfer order. See also below as regards how mediation can achieve the same result.
- Reliance on word of mouth – what I mean here is that, for completely understandable reasons, when faced with the emotional impact of divorce, clients will often turn, discreetly to family members or friends who have been through the same experience for advice. As mediation has not yet reached a point of critical mass, most confidantes will not have the experience of it so as to recommend it, resulting in the obvious, tried and tested route, still being to go to court.
- Hostility and friction – many divorces involve considerable bad feeling and 1 or both parties may be so distrustful and resentful to each other that they either want to push the issues all the way to a court decision or they don’t believe there is any prospect of a reasonable resolution via mediation. The thing with mediation is that it can be very difficult to get both parties to agree to try it. If the parties can be persuaded to try the process, as suggested below, the results can be surprising.
- Lack of financial disclosure – Many divorce disputes centre around money, and in order to reach a point where a sensible negotiation can take place, there needs to be full disclosure by both parties of assets and liabilities. In some situations, particularly where one or both parties have business interests which the other may not be fully aware of, disclosure can be a big issue. This is a genuine reason why mediation may not be worthwhile in every case, if matters have not reached a point where there is reasonable confidence that a meaningful discussion can take place.
Divorce mediation – worth trying ?
Some of the benefits of mediation are :-
- It is non-binding unless a resolution is reached – there is a common misconception that the party who suggests mediation is showing weakness, that if it doesn’t work the court will find out about negotiation or potential concessions and that it is binding. All of these are wrong – mediation is only binding if an agreement is reached and the whole process will be on a without prejudice basis unless an agreement is reached, meaning the court will not know about it.
- If it works it can be made binding – if mediation succeeds, lawyers involved would be negligent if they didn’t make part of the agreement, in writing, that the agreement would be transferred into a formal court order, which would be just as enforceable as proceeding wholly through the court system. It is worth noting that where children are involved, any meditated settlement would need to be approved by the court and would not just be “rubber stamped”
- It is generally quicker and a lot cheaper than going to court – this is caveated by saying that it does depend at what stage the parties agree to try and mediate. The benefits are significantly reduced if it is not considered and tried at an early stage.
- Success rate is very good – the hardest part of mediation is getting the parties to agree to it in the first place. This involves an acceptance of the reality that, as with any form of litigation, there are hardly ever any outright winners, and with limited resources, minimising costs is important. Once both parties come to this realisation and accept a degree of compromise, mediation has been proven to be very very effective, with a very high chance of a mediated resolution being reached, generally with a maximum of 1-2 days of time spent working through the issues with a skilled mediator wand with the benefit of legal advice for each party.
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